Tuesday, November 17, 2015

The Guidelines = Mass Incarceration

Judge Adelman, District of Wisconsin, has written an article (along with law clerk Jon Deitrich) entitled How Federal Judges Contribute to Mass Incarceration and What They Can Do About It. Here are the Judge's primary observations:

-- By placing too much emphasis on prison rather than alternative sentences, the guidelines contribute to mass incarceration. The number of prison-only sentences has increased from 83.3% in FY 2003 to 87% in FY 2014.

-- Judges are excessively attached to the guidelines "despite their deep flaws" and even after they were made advisory, in part because of "anchoring." Anchoring ties the court's analysis to the guideline range. Even if the court rejects that number, it still influences the decision. The guidelines "put a number on a question that is otherwise quite subjective."

-- Mass incarceration could be reduced if judges were less deferential to the guidelines and less focused on prison. Courts need to refocus on probation, determining first whether prison is even appropriate in a particular case. Probation can be more likely to satisfy the demands of section 3553(a)

To read more on the subject, and to bolster arguments for the court to step away from the guidelines, read Frank Bowman,Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines51 Hous. L.Rev. 1227 (2014).

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