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The Sounds of Silence: American Criminal Justice Policy in Election Year 2008
Frank O. Bowman III
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ARTICLES
The Big Picture
Doing Violence to the Law: The Over-federalization of Crime
Brian W. Walsh
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Tougher Federal Criminal Penalties versus More Crime Prevention Funding
Robert C. “Bobby” Scott
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Drug Détente
Erik Luna
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Reentry
Reentry Courts
Claire McCaskill
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Rehabilitating Prisoners through Public Works
Isabel Gomez
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ReSTART: GPS, Offender Reentry, and a New Paradigm for Determinate Sentencing
Jonathan J. Wroblewski
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Clemency Today, Reform Tomorrow
Molly M. Gill
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Sentencing Reform in General
Cutting Recidivism by Analyzing Sentencing Outcomes
Michael A. Wolff
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The Most Promising Way Forward: Incorporating Evidence-Based Practice into State Sentencing and Corrections Policies
Roger K. Warren
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The Justice Department
Time for a 21st Century Justice Department
Samuel W. Buell
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Restoring Federal Leadership on Crime Policy
Laurie Robinson
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Consistency in Non-Prosecution and Deferred Prosecution Agreements: A Lesson from the World of Federal Sentencing
David Debold and Kyle C. Barry
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A Fairer and More Democratic Federal Grand Jury System
John Wesley Hall
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Federal Sentencing
The State of the Sentencing Union: A Call for Fundamental Reexamination
James E. Felman
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Déjà vu All Over Again: How Post-Booker Sentencing Threatens Equal Justice Under the Law
John C. Richter
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Two Fronts for Sentencing Reform
Kate Stith
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Priority for a New Administration: Restore the Rule of Law in Federal Sentencing
William Otis
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Guidelines Simplification: Still an Urgent Priority Post-Booker
Michael M. O’Hear
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The Reset Solution
Paul J. Hofer
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The Swinging Pendulum: A Tale of Two Cases
Dan Small
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Federal Legislation
Using DNA and Forensic Science to Catch the Guilty and Protect the Innocent
Patrick Leahy
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The New Challenges of Cybercrime
Lamar Smith
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Still Time to Rethink the Misguided Approach of the Sex Offender Registration and Notification Act
Amy Baron-Evans
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EDITOR'S OBSERVATIONS
The Sounds of Silence: American Criminal Justice Policy in Election Year 2008
Frank O. Bowman III
One of the striking features of the 2008 election cycle has been the absence of crime as a national political issue. Nobody has declared metaphorical war on any type of crime, run an ad about the depredations of a parolee, or even promised 100,000 cops. It may simply be that for a country embroiled in two nonmetaphorical foreign wars and deeply nervous about the state of the economy, crime is a second-order concern. It could be that the big drop in crime of all types throughout the 1990s has made the issue seem less pressing. Whatever the explanation, things are awfully quiet out there.
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ARTICLES
The Big Picture
Doing Violence to the Law: The Over-federalization of Crime
Brian W. Walsh
Brian Walsh of the Heritage Foundation argues that the rapid expansion of federal criminal law, beyond almost all prudential and constitutional limits, may not be the first thing to leap to mind when one thinks of key problems with American criminal law. But the existence now of over 4,450 federal criminal offenses is itself a problem that implicates the foundations of the criminal law. The number of federal offenses is now so great that Americans are no longer familiar with what will constitute criminal conduct, and many of the offenses themselves are deeply flawed, omitting essential substantive elements necessary to protect the innocent. As a result of these flaws, the federal criminal code fails to serve what may be its most important function–which is not to expose and punish the relatively few persons who consciously choose to engage in criminal conduct–but to inform citizens of the law’s requirements. The proliferation of the criminal law–both in the number of offenses and their overall scope–demands that legal reformers revisit basic assumptions about what criminal law is and how best to rein in its actual and potential abuses.
Tougher Federal Criminal Penalties versus More Crime Prevention Funding
Robert C. “Bobby” Scott
As chairman of the House Judiciary Subcommittee on Crime, and as a national and state legislator for over thirty years, Bobby Scott observes that, when it comes to crime, public policy makers have a choice: “We can choose to do what has been proven to reduce crime, or we can play the politics-as-usual game of passing laws based on sound bites– laws that make politicians look tough, but which impose huge economic and human costs, do little or nothing to reduce crime, and may even increase it.” In calling for action to forestall more wasted human capital in the steady prison pipeline, the author urges a substantial and sustained effort to divert the youth population from crime.
Professor Eric Luna of the University of Utah and the Cato Institute takes libertarian aim at the drug war he sees as a costly and counterproductive failure, urging that criminal laws be abandoned or, failing that, moderated by scaling back aggressive enforcement, shifting resources to prevention and treatment programs, shortening drug sentences in general and eliminating mandatory minimum sentences in particular, and reviving parole systems to provide early release to nonviolent drug offenders.
Reentry
Rentry Courts
Claire McCaskill
Senator Claire McCaskill (D-MO), a state prosecutor before her election to the U.S. Senate, advocates in favor of the increased use of “reentry courts,” judicial or administrative bodies that oversee the reentry process, including monitoring, supervision, case management, service provision, and community involvement. She observes that while reentry courts are a relatively new phenomenon, they have demonstrated that the cycle of reoffending can be broken with intensive intervention efforts and the commitment of resources to first-time offenders.
Rehabilitating Prisoners through Public Works
Isabel Gomez
Isabel Gomez, formerly a Minnesota state judge and now the Executive Director of the Minnesota Sentencing Guidelines Commission, addresses the Sentencing to Service Homes program, which addresses the needs of inmates at least seven months prior to their release dates and puts them to work with on-the-job training for nearly all aspects of residential construction. After release from prison, participants are better equipped to join the construction work force. As the author indicates, at present there are more developers eager to become partners than the program is able to accommodate, and no more than five percent of those who have completed the program since its inception ever return to prison in Minnesota.
ReSTART: GPS, Offender Reentry, and a New Paradigm for Determinate Sentencing
Jonathan J. Wroblewski
Jonathan Wroblewski, Director of the Office of Policy and Legislation in the Criminal Division of the Department of Justice, takes a look at the Federal Remote Satellite Tracking and Reentry Training Program (ReSTART), a little-noticed prisoner reentry program signed into law this Spring as part of the Second Chance Act. While ReSTART sentencing has many components, such as substance abuse treatment and job training, this article focuses on one of its key aspects–the use of GPS monitoring technology in offender reentry strategies–and discusses both the problems and the great potential of GPS monitoring.
Clemency Today, Reform Tomorrow
Molly M. Gill
Molly Gill of Families Against Mandatory Minimums argues that the next U.S. President should revitalize the pardon power, both as a means of commuting sentences of particularly deserving individuals and as a means of calling attention to overpunishment of certain classes of cases. She points out that, at present, the clemency system has created a backlog of over 2,000 cases, some from applicants who have been waiting as long as eight years for decisions on their cases.
Sentencing Reform in General
Cutting Recidivism by Analyzing Sentencing Outcomes
Michael A. Wolff
Judge Michael Wolff of the Missouri Supreme Court addresses the binary system of state sentencing: “When we Americans argue issues of crime, punishment, and public safety, we tend to speak in generalities that reinforce policies that work against our own best interests. Typical of this phenomenon is the traditional approach to state sentencing, which largely has been a world of either/or choices: either prison or probation.” He argues that while prison may be the best alternative for the most violent offenders, prison is not necessarily the best choice for everyone, including nonviolent offenders who may be more likely to leave prison as repeat offenders. In urging a refocused sentencing system, the author proposes some compelling approaches.
The Most Promising Way Forward: Incorporating Evidence-Based Practice into State Sentencing and Corrections Policies
Roger K. Warren
Roger K. Warren, President Emeritus of the National Center for State Courts, argues in favor of incorporating more evidence-based policies into sentencing practice. As he observes, the emergence of this approach presents an important opportunity to address concerns regarding an offender’s risk of recidivism and his her need for individualized treatment services. In critiquing the unfair, costly, and ineffective sentencing and corrections policies of today that focus primarily on punishment, the author sheds light on the need for a new approach that focuses on the need to prevent reoffense.
The Justice Department
Time for a 21st Century Justice Department
Samuel W. Buell
Samuel W. Buell, a professor at Washington University and a respected former member of the Justice Department’s Enron Task Force, writes about the ways in which the tragedy of September 11, 2001 slowed the development of federal government policy, specifically in the area of criminal enforcement. The author contends that federal policymakers should refocus their efforts in deciding what should be done to ensure that federal enforcement is channeled toward acute problems and away from wasteful sanctions oversanctioning relatively unthreatening actors and behaviors.
Restoring Federal Leadership on Crime Policy
Laurie Robinson
Laurie Robinson, formerly Assistant Attorney General for the Office of Justice Programs, and currently Director of the Criminology Master of Science Program at the University of Pennsylvania, spoke this summer with police chiefs and other criminal justice officials around the country. She writes that one overarching theme was that the federal government is apparently absent as a critical partner in crime policy. As she observes, the Justice Department can exert a powerful organizing and leadership role with state and local authority and should reassert itself in that role. In her article, she offers a brief agenda of seven proposals for the new administration that will come on board after the election.
Consistency in Non-Prosecution and Deferred Prosecution Agreements: A Lesson from the World of Federal Sentencing
David Debold & Kyle C. Barry
David Debold and Kyle Barry argue for adoption of sentencing guidelines governing the Justice Department’s negotiation of non-prosecution and deferred prosecution agreements for corporations. Noting the objective of consistency touted by the Sentencing Reform Act, the authors contend that the Department’s recent approach to the prosecution of corporations has been seemingly arbitrary and lacking in fairness and predictability. While the Department has standards for prosecutors to consider when deciding whether to seek indictment of a corporation, it lacks guidelines for when non-prosecution agreements or deferred prosecution agreements should be sought or the circumstances under which they should include particular terms. Highlighting the need to encourage cooperation by companies under investigation, the authors argue that the Department should address the inconsistency across such agreements by adopting a centralized policy governing when such agreements are offered, what terms they contain, and how they are enforced.
A Fairer and More Democratic Federal Grand Jury System
John Wesley Hall
John Wesley Hall, current President of the National Association of Criminal Defense Lawyers, urges reform in grand jury proceedings to restrain what he views to be a pattern of prosecutorial abuse by the Justice Department. In the post-Booker era, where there is an enhanced need to screen what used to be treated as judge-determined sentencing factors, the role of the grand jury has grown even more significant. While the grand jury system has undergone reforms in the past, the author contends that more fundamental change is needed to shift power from the prosecutor back to the citizens involved in their democratic role as buffers between the accuser and the accused.
Federal Sentencing
The State of the Sentencing Union: A Call for Fundamental Reexamination
James E. Felman
In his role as co-chair of the Sentencing Committee of the Criminal Justice Section of the American Bar Association, James Felman perceives a special need for an across-the-board review of the length of federal sentences. The accelerated trend in sentencing severity over the past decade, he argues, requires a fundamental re-examination of American sentencing policy, beginning with the elimination of the crack/powder disparity, expansion of the uses of alternatives to incarceration, and reform of mandatory minimum sentences. In addition, the author contends that various reforms over the longer term are in order, including careful collection of sentencing data by the Sentencing Commission and more rigorous work by the federal judiciary in explaining why a given sentence is appropriate in every case.
Déjà vu All Over Again: How Post-Booker Sentencing Threatens Equal Justice Under the Law
John C. Richter
John Richter, a United States Attorney and Chair of the Attorney General’s Advisory Subcommittee on Sentencing, expresses his concern about the resurgence of sentencing disparity and urges revisions to the advisory Guidelines system to address that concern. He observes that while judges generally endeavor to sentence similarly situated offenders similarly, their reliance on the factors in Section 3553(a) yields fundamentally different outcomes that ultimately threaten the principle of equal justice under the law. In the interest of greater fairness, the author urges reconsideration of the same debates about consistency in punishment that were at the heart of the sentencing reform movement long ago.
Two Fronts for Sentencing Reform
Kate Stith
Professor Kate Stith of Yale Law School, and member of the FSR Advisory Board, urges reform of the federal sentencing system in two respects. First, she contends that the Sentencing Commission should embark on a project to revise the Guidelines so that recommended sentences are more proportionate to the offender’s culpability. Second, she argues in favor of expediting the offender’s entry into supervised release. In particular, she proposes a modified system wherein judges would be allowed to take a second look at sentences, after the defendant has spent some time in prison. By this novel approach, sentences viewed in hindsight could be reconsidered based upon, among other things, changes in social or legislative assessments of the seriousness of the offense, and the offender’s behavior while in prison.
Priority for a New Administration: Restore the Rule of Law in Federal Sentencing
William Otis
William Otis, a former prosecutor, develops a case against the unfettered judicial sentencing discretion he contends that Booker has created. As he views it, the very system that the Sentencing Reform Act was intended to improve has now made a return after Booker so that luck-of-the-draw sentencing is back in full force. In urging a return to a mandatory Guidelines system, the author highlights the dangers of what he views to be standardless sentencing that may threaten public confidence in the rule of law.
Guidelines Simplification: Still an Urgent Priority Post-Booker
Michael M. O’Hear
Professor and FSR Editor Michael O’Hear makes a powerful case that an improved post-Booker sentencing scheme requires changes to the structure of the Guidelines themselves rather than simply to the way they are applied. As he explains, such fundamentals have already been laid down in the work of the Constitution Project Sentencing Initiative and the follow-up to that work by the Model Sentencing Guidelines Working Group. The simplified model strives to, among other things, eliminate a number of offense levels, widen sentencing ranges associated with each offense level, and provide fewer specific offense characteristics triggering mandatory adjustments to the offense level. As the author contends, this modified system presents several advantages, including affording judges measured discretion to assess specific offense characteristics within an appropriate range, addressing due process concerns by subjecting sentencing facts that determine range to higher procedural protections, and limiting the role of “factor creep.”
The Reset Solution
Paul J. Hofer
Paul Hofer, former Special Projects Director of the Sentencing Commission, offers a compelling proposal suggesting that Congress pass special legislation giving the Commission authority to restructure and simplify the current advisory Guidelines to better advance the objectives of the Sentencing Reform Act. In urging for a comprehensive re-evaluation and amendment of the Guidelines, the author argues principally that the legal constraints limiting the Commission’s ability to write new Guidelines based upon its independent expertise must be lifted. In particular, he proposes that the Commission be given the power to revise the Guidelines as necessary in order to maintain the federal prison population at a certain level. In addition, he proposes that the Commission be encouraged to indicate through commentary or examples the types of cases to which a particular Guideline applies and how it is intended to comply with Section 3553(a). In the end, the author observes that Congress holds the key to effecting real change in sentencing policy by changing the way in which the Commission does business.
The Swinging Pendulum: A Tale of Two Cases
Dan Small
Dan Small highlights two accounting cases that demonstrate how the sentencing pendulum has swung from one extreme to the other in white-collar cases over the past decade. From mere slaps on the wrist to unreasonably long sentences for offenders with no criminal history, neither extreme, the author contends, ultimately serves the ends of justice. With a new administration comes new opportunity to follow the Guidelines’ mandate to impose sentences that are sufficient, but not greater than necessary, to meet the purposes of punishment and arrive at a reasonable center. In the main, the author contends that any change in expanding judicial discretion at sentencing must come from the Commission rather than Congress.
Federal Legislation
Using DNA and Forensic Science to Catch the Guilty and Protect the Innocent
Patrick Leahy
Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, discusses the Innocence Protection Act of 2004 and other recent initiatives he has sponsored to employ DNA and other advanced forensic evidence to implicate the guilty and exonerate the innocent in both state and federal courts. He contends persuasively that proper and effective use of forensic technology requires good science in the form of well-funded forensic laboratories and reduced crime lab backlogs. As he observes, the collaboration among Congress, the Executive Branch, the states, and the scientific community is required in these efforts.
The New Challenges of Cybercrime
Lamar Smith
Senator Lamar Smith (R-TX), member of the Committee on the Judiciary in the House of Representatives, focuses on the need for new legislation to combat cybercrime, particular in the area of evidence collection. As he views it, legislation must stay ahead of an offender’s ability to exploit technological developments. In particular, new measures should include expanding the length of time that an Internet Service Provider must retain subscriber records in order to stifle an offender’s ability to maintain internet anonymity and remove obstacles to jurisdiction over the crime.
Still Time to Rethink the Misguided Approach of the Sex Offender Registration and Notification Act
Amy Baron-Evans
Amy Baron-Evans, Sentencing Resource Counsel for the Federal Public and Community Defenders, addresses the controversial class of sex offenders. In leveling a critique of the Sex Offender Registration and Notification Act, the author notes that the law requires states to adopt a one-size-fits-all policy of punishment instead of allowing states to limit public notification based upon an offender’s level of dangerousness and risk of recidivism. In the end, the author contends that Congress should fund state initiatives to study and adopt better practices in this area, including the use of risk assessment models that focus on whether disclosure of registration information is necessary for public safety.
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