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A 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,

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.


Nora Callahan, November Coalition

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