Tuesday, February 12, 2019

Advocating for probation

When imposing a sentence, federal judges are required to consider the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(D).

And yet "imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. § 3582(a). See also Tapia v. United States, 564 U.S. 319 (2011).

What's a federal judge to do?

Consider alternatives to imprisonment, that's what. And defense counsel now have a roadmap for encouraging the judge to do just that, with U. Chicago Law Professor Erica Zunkel's new article 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the Most Effective Manner.”

A few lessons from the article:

First, federal law commands judges to consider the need for correctional treatment "in the most effective manner." BOP cannot provide that treatment. Again, federal law prohibits imposing a prison sentence for rehabilitation purposes. And BOP "faces numerous hurdles to providing 'the most effective' care for defendants due to overcrowding, staffing shortages, high medical costs, and budget cuts."


Second, defense counsel should present the sentencing judge with specific evidence and data contrasting correctional treatment relevant to counsel's client inside the BOP with correctional treatment available outside the BOP.

Third, defense counsel should show the sentencing judge how a non-prison sentence promotes other sentencing goals as well. For instance, even the Supreme Court has recognized that probation constitutes punishment, as it "substantially restrict[s]" a person's liberty. Gall v. United States, 552 U.S. 38, 48 (2007). And counsel can present studies to argue that a probationary sentence with correctional treatment can do a better job of deterring crime and protecting the public than can a sentence of imprisonment.

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