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Message from the Director
By Nora Callahan
In
the mid-1980's, US lawmakers bent to the will of a get-tough-on-drugs
crowd and gave birth to two kinds of criminal sentencing schemes.
They were given two different names. One scheme called Mandatory
Minimum Sentencing was anything but minimum.
Another set of sentencing laws was adopted
and called the US Sentencing Guidelines, but they weren't a guide
at all, just more mandatory sentencing. Then, with a whoosh,
Congress abolished parole and sentencing was changed completely
-- gone was hope for earned early release.
Since then, there have been some dramatic
changes -- even if legal experts haven't explained them yet.
Yet ordinary people, watching the federal sentencing scene, know
that levels of expectancy higher than other times of wishful
thinking are felt by more people than just 19,500 federal prisoners
now eligible to petition trial judges for retroactive relief.
Sentencing relief estimates average about
15 months per qualifying defendant, qualifications not yet published
by legal experts. On the eve of winter, news that as much as
24,000 years of freedom could be granted which, over time, may
save taxpayers at least a billion dollars has raised a lot of
eyebrows. Hopes are up too.
Just before the US Sentencing Commission granted retroactive
crack cocaine sentencing relief, the Supreme Court decided the
US Sentencing Guidelines were just that -- guides for judges
and not the mandatory grid that's been laid over convicted people
for almost three decades. Even less noticed -- some restored
judicial discretion hints that new restraints on unchecked prosecutorial
power in the lower courts are in the works.
Confusing or not, we still have drug and
other mandatory minimum sentencing -- and the Supreme Court has
yet to tell us how one mandatory sentence is unfair, and another
system that harnesses a judge's discretion is okay. It's going
to get crazy in the courts.
I'm counted among those imagining big changes,
not just minor adjustments, to come. But before heralding great
victory, we should be aware that increased judicial discretion
might also lead to class and race disparity in sentencing, just
as prosecutorial discretion has. It did in the past.
What's yet to be done is to address policing
entirely, something the USSC tried to do in their 2004
15-Year Assessment. The USSC admitted it couldn't monitor
90% of the sentencing system partly because "sentencing
begins at investigation," going on to explain that police
deliberately leave a defendant in a 'sting' within a 'conspiracy'
long enough to sell enough drugs that will merit a sentence police
investigators think the suspect deserves.
That tangled hidden system of policing,
when coupled with classism and racism -- if institutionalized,
or overt -- lends to a system that fails without development
and oversight from 'stakeholders' -- people from our communities,
including those carrying the stigma of felon.
What's largely missing is exploratory talk
about what should replace a failed system of punitive beliefs,
laws and policies. Missing is talk of restorative justice, a
system of corrections that promises to develop safer communities
with balanced alternatives to criminal sentencing for misconduct.
The authors of Unlocking America more earnestly begin
that discussion than I've noticed from social scientists of late.
We appreciate their permission to reprint it for you in this
issue as an insert, and look forward to readers' comments.
We know that the USSC heard from a record
number of people regarding crack cocaine sentencing retroactivity.
According to the Connecticut Post online in a December
2, 2007 article entitled Drug laws called unfair to minorities,
"More than 33,000 letters of comment were sent to the Commission
on the retroactive proposal." Most letters encouraged retroactivity.
Trillions of dollars are there to be reinvested
in social rehabilitation programs instead of imprisonment. So
we'll stand with people who live in economically hard-pressed
communities who demand money be invested where they live, not
in far away prisons. The time for those demands is now.
In Struggle, 
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September 15, 2007
United States Sentencing Commission
One Columbus Circle, NE
Washington, DC 20002-8002
Attention: Public Affairs - Retroactivity Public Comment
Dear Honorable Commissioners:
Today, millions of citizens know that sentencing reform using
guideline sentencing is in its third decade of development.
There are more critics today than ever before, and dissent
is rising. The Commission's work through the years acknowledging
the adverse impacts of the sentencing disparity of the 100-to-1
crack cocaine ratio has not gone unnoticed. This letter is to
urge the distinguished Commission's support of retroactive sentencing
relief.
The absence of data the Commission needs to substantiate and
make further recommendations - almost 30 years into the process
of injecting transparency, consistency, and fairness into the
sentencing process - is not the Commission's fault. It is, though,
the Commission's responsibility to recommend rectification, and
we know that burden brings great weight to the shoulders of the
Commissioners.
This is especially so today as federal incarceration rates
continue to soar in record numbers, and over-crowding of federal
correctional institutions remains a continuing barrier to public
safety. This letter is to demonstrate that there is public support
for retroactive sentencing relief.
Retroactivity might restore some citizen faith that a new
system of sentencing is not so rigid that it can't serve society.
Without a period of sensible, fair and equal adjustments,
new ground will be laid for another period "ripe for reform,"
requiring sudden drastic measures, and allowing for another three
decades of scant data collection and failure to promulgate procedure.
Without retroactive sentencing relief (not to be confused
with re-sentencing), cherished legal principles will be set aside,
mostly because of political reasoning. The goals aforementioned
will be out of reach-furthering the public's perception that
crack cocaine sentencing disparities are racially motivated,
not lessening that perception.
The Commission's own conclusions within the 2004 15-year Guidelines
Assessment reveal that without data, public perception becomes
the basis of fact. This fact also lends new legitimacy to the
power of the Commission to convince Congress to enact an orderly
system of retroactive sentencing relief. The goals of the Commission
to reduce unwarranted disparity, increase rationality and transparency
of punishment, and make punishment proportional cannot be accomplished
without retroactive sentencing relief. Showing a lack of progress
at improving these important components toward a more just system
of sentencing will only breed more despair and disrespect for
law.
Without retroactive sentencing relief, justice remains disparate.
Thank you.
Sincerely,
Nora Callahan, November Coalition
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