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A “HOLOCAUST IN SLOW MOTION?”
AMERICA’S MASS INCARCERATION
AND THE ROLE OF DISCRETION
MARK OSLER

AND

JUDGE MARK W. BENNETT1

TABLE

OF

CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. The Mass Incarceration Explosion . . . . . . . . . . . . . . . . . .
A. A brief overview of federal sentencing . . . . . . . . .
B. The staggering metrics of mass incarceration . . .
C. The staggering effects of mass incarceration . . .
III. Congress and Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Congress and sentencing: obsession and
inaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The roots of congressional attention and
inaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. The Sentencing Commission and Discretion . . . . . . . .
V. Federal Prosecutors and Discretion . . . . . . . . . . . . . . . . .
A. The power prosecutors received . . . . . . . . . . . . . . . .
1. The lack of second-chance mechanisms . . . .
2. Mandatory minimums. . . . . . . . . . . . . . . . . . . . . . .
3. Mandatory/advisory sentencing guidelines . .
B. What federal prosecutors did with that power .
VI. Federal District Court Judges and Discretion . . . . . .
VII. Reversal of Fortunes and the New Discretion . . . . . .
A. The current momentum . . . . . . . . . . . . . . . . . . . . . . . . .

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* Mark Osler is a professor of law at the University of St. Thomas School of
Law and a former federal prosecutor in Detroit. Mark W. Bennett is in his
twentieth year as a United States district court Judge in the Northern District
of Iowa and a long-time adjunct professor at the Drake University Law
School.

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B. How to reverse federal mass incarceration . . . . .
1. Congress—much hope is on the horizon . . .
2. Department of Justice—the unprecedented
leadership and vision of Attorney General
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. The Sentencing Commission—there is a lot
of work to be done . . . . . . . . . . . . . . . . . . . . . . . . .
4. Federal judges—there is no algorithm for
human judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.

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INTRODUCTION

Speaking to the camera in Eugene Jarecki’s film, The House I
Live In, David Simon said, “The drug war is a holocaust in slow
motion.”2 Simon, who created the seminal television series
about narcotics, The Wire, did not use the word “holocaust”
casually.
Like most provocative allusions, applying the word “holocaust” to the drug war is part truth and part gross exaggeration.
The drug war clearly differs from a holocaust in terms of out2 THE HOUSE I LIVE IN (Charlotte Street Films 2012). Jarecki’s film won the
2012 Sundance Film Festival’s Grand Jury Prize for Best Documentary Film.
See 2012 SUNDANCE FILM FESTIVAL, http://history.sundance.org/events/1141
(last visited Feb. 27, 2014) (listing 2012 Sundance Film Festival Awards); see
also, MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION
IN THE AGE OF COLORBLINDNESS 6–7 (2012) (footnotes omitted) (“The racial dimension of mass incarceration is its most striking feature. No other
country in the world imprisons so many of its racial or ethnic minorities. The
United States imprisons a larger percentage of its black population than
South Africa did at the height of apartheid . . . These stark racial disparities
cannot be explained by rates of drug crime . . . In some states, black men
have been admitted to prison on drug charges at rates twenty to fifty times
greater than those of white men. And in major cities wracked by the drug
war, as many as 80 percent of young African American men now have criminal records and are thus subject to legalized discrimination for the rest of
their lives. These young men are part of a growing undercaste, permanently
locked up and locked out of mainstream society.”)

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come, certainly: It primarily seeks the imprisonment of millions
rather than death.3 The drug war and a holocaust, though, do
share one crucial commonality. Both occur when thousands who
work within the system are complicit in something they should
know is wrong. Both represent a failure of the moral compass,
not only of society as a whole, but of those who exercise their
discretion to build and maintain the mechanism of injustice. We
write this not only as a societal critique, but also as a confession.
As a former federal prosecutor and a sitting federal judge, respectively, we have been among those pulling the levers that operate this cruel machine of mass incarceration.
Those complicit when a social function becomes unjust often
explain their involvement by describing their limited role—they
were simply “following the orders” of others. So it is with the
drug war.4 The sentencing judge follows the instructions of the
U.S. Sentencing Commission (“Sentencing Commission”), the
Ian F. Haney Lopez,
´
Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CALIF. L. REV. 1023, 1025 (2010) (footnote omitted) (“The public security system in the United States produces
shocking racial disparities at every level, from stops to arrests to prosecutions
to sentencing to rates of incarceration and execution. The United States, today, places almost one in every thirty of its residents under correctional control in a racial pattern that generates state prison populations that are twothirds black and Latino.”); Id. at 1028 (“Even the most cursory engagement
with American criminal justice at the start of the twenty-first century drives
home the twin points that the United States puts people under the control of
the correctional system at an anomalously high rate, and that it shuts behind
bars an overwhelmingly disproportionate number of black and brown
persons.”).
4 Congressman John Conyers, Jr, has recently written that “[t]he single most
significant factor [in the rise of mass incarceration] is this country’s war on
drugs.” Congressman John Conyers, Jr., The Incarceration Explosion, 31
YALE L. & POL’Y REV. 377, 379 (2013). Even some federal circuit judges
recognize that the War on Drugs has failed even with the imposition of harsh
sentences. See, e.g., Walking Eagle v. United States, 742 F.3d 1079,1083
n.2(8th Cir. 2014) (“In affirming the denial of postconviction relief to Walking Eagle, we nevertheless observe that Walking Eagle’s 20-year mandatory
minimum sentence is another example of a harsh sentence that is required
for a non-violent crime in what now seems generally recognized as this country’s continuing but unsuccessful War on Drugs.”).
3

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Sentencing Commission follows the lead of Congress, members
of Congress do what they imagine their constituents will respond to, and the prosecutors at the Department of Justice
(“DOJ”) see themselves as simply making real the directives of
Congress, the Sentencing Commission and the judges. By this
way of thinking, no one is really culpable. No one is leading; all
are being led. It is this way of thinking that is the source of all
the wrongs that people impose on each other. In these pages, we
want to untie that tangle and lay out both real culpability and
the hope for change that is now emerging. Beneath it all is
something more important than any academic theory or statistical set: the real lives of people who have been over-incarcerated
by our hands and the hands of those who will continue this work
until the machine is stopped.
We will start by describing the problem: Part II provides a
brief introduction of federal sentencing, an overview of the stunning metrics of mass incarceration in America and a brief
glimpse of its dramatic effects. Parts III, IV, V and VI discuss
the role of discretion by each of the four players: Congress, the
Sentencing Commission, the DOJ and federal trial court judges,
in contributing to mass incarceration at the federal level. Part
VII discusses how the same exercise of discretion, tilted in different directions, which we have started to see in all four players, bodes well for reversing the trend of mass incarceration. We
add specific, practical and achievable suggestions for how discretion by the four players should be utilized to reduce mass incarceration and foster fairer and more just federal sentencing.
We write this at a fortunate moment. There are signs that all
four players are slowly moving to change how federal narcotics
sentencing increases mass incarceration. What is essential is that
these actions be the start, not the end, of a broad, whole and
thoughtful reform movement to end mass incarceration in
America.

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II.
A.

THE MASS INCARCERATION EXPLOSION
A brief overview of federal sentencing

In order to understand the rise of mass incarceration, we start
with a very brief history and overview of federal sentencing.
“From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion.”5 However,
“[A]llegations of discrimination and unfairness at sentencing
have prompted numerous attempts at sentencing reform in the
United States.”6 In response to these concerns, especially alleged sentencing disparity among federal district court judges,
“and after more than a decade of study and debate, a bipartisan
Congress enacted the most far-reaching reform of federal sentencing in this country’s history—the Sentencing Reform Act of
1984 (SRA).”7 The SRA, inter alia, abolished federal parole and
created the Sentencing Commission to develop mandatory federal sentencing guidelines, in the hope that these measures
would “provide certainty and fairness at sentencing and reduce
the unwarranted disparity in sentencing that Congress found
‘shameful.’ ”8 Prophetically, U.S. Representative John Conyers
of Michigan, then chair of the House Subcommittee on Criminal
Justice “cautioned that guidelines might actually increase socio5 Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV.
223, 225 (1993); see also Mistretta v. United States, 488 U.S. 361, 363 (1989)
(“For almost a century, the Federal Government employed in criminal cases
a system of indeterminate sentencing. Statutes specified the penalties for
crimes but nearly always gave the sentencing judge wide discretion to decide
whether the offender should be incarcerated and for how long, whether he
should be fined and how much, and whether some lesser restraint, such as
probation, should be imposed instead of imprisonment or fine.”)
6 Hon. William W. Wilkins, Jr., Phyllis J. Newton & John Steer, Competing
Policies in a War on Drugs, 28 WAKE FOREST L. REV. 305, 307 (1993).
7 Id. at 305-06. (footnote omitted).
8 Id. (footnote omitted).

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economic disparity in sentencing” and “lead to ‘an escalation of
sentences’ due to ‘political pressure.’ ”9 How right he was.
The Guidelines became effective on November 1, 1987, and
created a mandatory complex system of federal sentencing rules
focusing on defendants’ prior criminal history, the current offense and a plethora of aggravating and precious few mitigating
factors about the offense, concluding in a judge computing a
narrow range based on a 258 cell grid that expresses a range of
months (e.g. 262-327) in the Sentencing Table, the centerpiece
of the Guidelines.10 Over 20 years ago, Professor Albert W. Alschuler noted that the “grid and bear it”11 approach to federal
sentencing, which applies “the 258-box federal sentencing grid,”
should now “be relegated to a place near the Edsel in a museum
of twentieth-century bad ideas.”12
From their beginning in 1987, the Guidelines were mandatory
until the landmark U.S Supreme Court decision in 2005, United
States v. Booker.13 The Booker revolution rendered the Guidelines advisory because mandatory Guidelines violated the Sixth
Amendment of the U.S. Constitution.14 Two years later, in another watershed sentencing decision, Kimbrough v. United
Stith & Koh, supra note 5, at 263–64.
Mark W. Bennett, Confronting Cognitive “Anchoring Effect” And “Blind
Spot” Biases In Federal Sentencing: A Modest Solution for Reforming A Fundamental Flaw, 104 J. CRIM. L. & CRIMINOLOGY 101, 132 (2014) (citing
United States v. Newhouse, 919 F. Supp. 2d 955, 958 n.1 (N.D. Iowa 2013)
(Bennett, J.) (citing U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A,
Sentencing Table (2012)) (“The guideline ranges are contained in a sentencing table or grid consisting of 43 offense levels on a vertical axis and 6 criminal history categories on a horizontal axis that intersect to form a sentencing
grid with 258 cells that each contain an advisory guideline sentencing range,
except for the 6 cells for offense level 43 that have a single sentence: life”).
11 United States v. Newhouse, 919 F. Supp. 2d 955, 957 (N.D. Iowa 2013)
(Bennett, J.).
12 Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for
Less Aggregation, 58 U. CHI. L. REV. 901, 950 (1991).
13 543 U.S. 220 (2005).
14 Id.
9

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States,15 the U.S. Supreme Court decided that federal trial court
judges were empowered to express “policy” disagreements with
any specific Guideline even in a “mine-run” or run of the mill
case.16 In yet another major decision, coming down the same
day as Kimbrough, the Court decided Gall v. United States,17
and held that federal district court judges had discretion to
“vary” downward or upward from the Guideline range based, in
part, on individual characteristics of a specific case and/or defendant and other factors delineated in 18 U.S.C. § 3553(a).18
Former federal district court judge, Nancy Gertner, observed:
Notwithstanding principled opposition, something
remarkable happened. Judges enforced the new
Guidelines with a rigor that was not at all required
. . . Judges at all levels, trial and appellate, applied
the Guidelines as if they were . . . diktats.19
Indeed, this rigorous application of the Guidelines, coupled
with mandatory minimums, propelled a federal prison population increase of 761% from 1980 to 2010, growing from 24,252 to
a staggering 209,771.20
552 U.S. 85 (2007).
Id. at 89.
17 552 U.S. 38 (2007).
18 The statutory factors, include, inter alia, “the nature and circumstances of
the offense and the history and characteristics of the defendant,” “the need
for the sentence imposed,” including “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; to afford adequate deterrence to criminal conduct; to protect the
public from further crimes of the defendant; and to provide the defendant
with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;” and are enumerated in 18
U.S.C. § 3553(a).
19 Nancy Gertner, From Omnipotence to Impotence: American Judges and
Sentencing, 4 OHIO ST. J. CRIM. L. 523, 524 (2007).
20 PAUL GUERINO, PAGE M. HARRISON & WILLIAM J. SABLO, BUREAU OF
JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUSTICE,
PRISONERS IN 2010 (2011, revised Feb. 9, 2012), available at http://
bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf.
15
16

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The staggering metrics of mass incarceration

The statistics on mass incarceration are stark but now all too
familiar. Largely due to the war on drugs, the United States,
with less than 5% of the world’s population, has nearly 25% of
the world’s incarcerated population.21 “The War on Drugs became its own prison-generating machine, producing incarceration rates that ‘defy gravity and continue to grow even as crime
rates are dropping.’ ”22 With 2.2 million people currently in the
nation’s prisons or jails, the United States is the world leader in
incarceration with a 500% increase over the past 40 years.23 The
United States, with the highest incarceration rate in the world,
exceeds the highest incarceration rates in Europe by more than
500%.24 The number of people in federal prisons for drug offenses increased 1950% between 1980 (4,749 people) and 2010
(97,472 people).25
ROY WALMSLEY, INT’L CTR. FOR PRISON STUDIES, WORLD POPULATION
LIST (9th ed. 2011), available at http://www.apcca.org/uploads/9th_Edition_
2011.pdf.
22 Dorothy E. Roberts, The Social and Moral Costs of Mass Incarceration in
African American Communities, 56 STAN. L. REV. 1271, 1275 (2004).
23 THE SENTENCING PROJECT, FACTSHEET: TRENDS IN U.S. CORRECTIONS 2
(2011), available at http://sentencingproject.org/doc/publications/inc_Trends_
in_Corrections_Fact_sheet.pdf.
24 Lopez,
´
supra note 3, at 1029 (footnote omitted).
25 GUERINO, ET AL., supra note 20 (20% of the drug offenders in federal
court were convicted of crack cocaine offenses, over 82% were convicted of
an offense carrying a mandatory minimum sentence, only 5.6 % of these offenders were given an aggravating role adjustment in their sentencing, and
over 83% of these offenders were black); U.S. SENTENCING COMM’N, REPORT TO THE CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 191, 193 (2011). Another 20% of drug
offenders convicted in federal court in 2010 were for methamphetamine offenses, and over 83% of them were convicted of an offense carrying a
mandatory minimum sentence, and only 5.5% of these offenders were given
an aggravating role adjustment in their sentencing. Id. at 223, 226; Mark W.
Bennett, Hard Time: Reflections on Visiting Federal Inmates, 94 JUDICATURE 304 (2011).
21

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The U.S. incarcerates a higher percentage of its population
than any country in the world, as the following chart shows.26
TOP 10 COUNTRIES WITH HIGHEST INCARCERATION RATES
(MOST RECENT YEAR, 2006-2009)

Prison populations have mushroomed through incarceration
of increasing numbers of young males, especially young black
men, mostly from impoverished urban areas. “As many as 1 in 8
of the adult male residents of these urban areas is sent to prison
each year and 1 in 4 is behind bars on any given day.”27 Incarceration is now a bedrock experience for far too many minorities and their families.28 “By 1999, imprisonment had become a
Mass Incarceration: Breaking Down the Data by State, PRISON LAW BLOG
(July 13, 2010, 6:37 AM), http://prisonlaw.wordpress.com/2010/07/13/mass-incarceration-breaking-down-the-data-by-state/.
27 Roberts, supra note 22, at 1276.
28 Id. at 1275–76 (“Because poor black men and woman tend to live in racially and economically segregated neighborhoods, these neighborhoods feel
the brunt of the staggering prion figures.”). “As much as criminalizing drugs
impacted urban America in general, and poor neighborhoods of color in particular, both spaces were also disproportionately affected after 1970 by an
overhaul of state and federal sentencing guidelines related to drug convictions.” Heather Ann Thompson, Why Mass Incarceration Matters: Rethinking
26

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common life event for black men that sharply distinguishes their
pathway through adulthood from that of white men.”29 If white
males were incarcerated at the same rate as black males, there
would be more than 6 million people in jail and prisons in the
United States.30 A black male born in the latter 1960s, after the
passage of the Civil Rights Act of 1964 and the Voting Rights
Act of 1965, is more than twice as likely to have been imprisoned as one born in the 1940s.31 It has gotten far worse. In 2011,
according to U.S. DOJ statistics, among prisoners aged 19 and
20, black males were imprisoned at more than nine times the
rate of white males.32 Hispanic males were imprisoned at more
than three times the rate of white males.33 Among males ages 20
to 24, blacks were imprisoned at more than seven times the rate
of white males.34 Hispanic males were imprisoned at nearly
three times the rate of white males.35 Even at the other end of
the age spectrum, among males aged 60 to 64, black males were
imprisoned at five times the rate of white males and Hispanic
males nearly three times the rate of white males.36 Depending
on their ages, black females were imprisoned at between two to
three times the rate of white females and Hispanic females at
Crisis, Decline, and Transformation in Postwar American History, 93 J. AM.
HIST. 703, 709 (2010).
29 Bruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621 ANNALS AM. ACAD. POL. & SOC. SCI. 221, 232 (2009).
30 Id. at 228.
31 James Forman, Jr., Why Care About Mass Incarceration?, 108 MICH. L.
REV. 993, 997 (2010). “Moreover, there is no other indicator of community
well-being in which the black-white disparity is as great. Blacks are about
eight times more likely to go to prison than are whites. The 8:1 disparity
dwarfs black-white disparities in, for example, unemployment rates (2:1 disparity), infant mortality (2:1 disparity), and out-of-wedlock births (3:1 disparity).” Id. (footnote omitted).
32 GUERINO, ET AL., supra note 20, at 8.
33 Id.
34 Id.
35 Id.
36 Id at 27.

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between one to three times the rate of white females.37 As Congressman Conyers has noted “[o]ver the last 4 decades, we have
seen an unprecedented rise in the prison population and a disturbing rise in the number of African Americans in prison.”38
In sum, even a decade ago, Professor Dorothy Roberts observed, “The sheer scale and acceleration of U.S. prison growth
has no parallel in western societies.”39 One could add to that –
no parallel anywhere in the world. Federal sentencing and the
corresponding explosion in the federal prison population reflects this. It has grown by more than 400 % from 24,252 in 1980
to over 208,000 in 2009 and finally to 216,728 at the end of
2013.40 Nearly half of the inmates in federal prisons are serving
time for drug offenses.41 As of November 29, 2012, the Bureau
of Justice Statistics of the DOJ reported that about 6.98 million
people in the United States were under correction supervision in
prison or jail or on probation or parole.42
C.

The staggering effects of mass incarceration

There is so much focus on the incarcerated, we tend to ignore
the dramatic effects incarceration has on families. At the dawn
of the twenty-first century, federal and state prisoners were parents to 1,498,800 children under the age of 18.43 By 2002, one in
every 45 minor children had at least one parent in federal or
Id.
Conyers, supra note 4, at 387.
39 Roberts, supra note 22, at 1272.
40 FEDERAL BUREAU OF PRISONS, POPULATION STATISTICS, http://www.bop.
gov/about/statistics/population_statistics.jsp (last visited Feb. 28, 2014).
41 E. ANN CARSON & WILLIAM J. SABOL, BUREAU OF JUSTICE STATISTICS,
OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUSTICE, PRISONERS IN 2011
(2012), available at http://www.bjs.gov/content/pub/pdf/p11.pdf.
42 Press Release, Bureau of Justice Statistics, Office of Justice Programs,
U.S. Dep’t of Justice, One in 34 U.S. Adults under Correctional Supervision
in 2011, Lowest Rate Since 2000 (Nov. 29, 2012), available at http://
www.bjs.gov/content/pub/press/cpus11ppus11pr.cfm.
43 Thompson, supra note 28, at 713.
37
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state prisons, and 52% of state inmates and 63% of federal inmates had an estimated 1,706,600 minor children mostly under
the age of ten.44 By 2010, one in ten American children had one
or both parents under correctional supervision (pre-trial, in jail
or prison or on some form of probation, parole or term of supervised release).45
A 2005 study summarized the effects of mass incarceration on
families, “Incarceration impacts the life of a family in several
important ways: it strains them financially, disrupts parental
bonds, separates spouses, places severe stress on the remaining
caregivers, leads to a loss of discipline in the household, and to
feelings of shame, stigma, and anger.”46
The rise of America as a carceral nation has had “devastating
short-term and long-term consequences,” especially for inner
cities.47 Professor Thompson has described the vicious cycle of
mass incarceration and poverty this way:
As the postwar period wore on, America’s urban
centers were increasingly trapped in a vicious cycle of imprisonment and want, one that both
undergirded and ensured civic distress: mass incarceration increased poverty, increased urban poverty led to even more urban incarceration, and so
on. According to analysts, as many as 70 percent
of the children whose parents were imprisoned at
the close of the twentieth century would end up
behind bars themselves, and African American
children were more than eight times more likely to

Id.
Id. at 714.
46 Ricardo Barreras, Ernest Drucker, & David Rosenthal, The Concentration of Substance Use, Criminal Justice Involvement, and HIV/AIDS in the
Families of Drug Offenders, 82 J. OF URBAN HEALTH BULLETIN OF THE
N.Y. ACAD. OF MED. 1, 168 (2005).
47 Thompson, supra note 28, at 715.
44
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have a parent in prison than were white children
in major cities such as Chicago.48
How did America, the land of the free and home of the brave,
the shinning beacon of freedom to the world, become the
world’s unchallenged leader in mass incarceration? The next
four sections explain this.
III.
A.

CONGRESS

AND

DISCRETION

Congress and sentencing: obsession and inaction

Congress’s discretionary role in criminal law is easily understood—they pass laws that direct the other branches. However,
that simplicity masks a more complex reality when we look at
modern sentencing. Congress has not performed this task by
continually evaluating the field of criminal law and then routinely passing laws to correct problems and improve the system.
Instead, Congress’s actions have been remarkably uneven. In
short, Congress created a massive change in the very structure
of criminal law in the mid-1980s, then stood back, disinterested,
as the whole thing fell apart. Only recently has there been a return to the traditional role of Congress, as they have for the first
time in three decades moved to right-size sentences based on an
evaluation of past experience and current realities. In the next
few pages, we will lay out this odd and uneven history.
The whole of federal criminal law was transformed in a period
of just three years, a spasm that began with Congress passing the
Sentencing Reform Act of 1984 (SRA)49 and ended with the
passage of the Anti-Drug Abuse Act of 1986 (ADAA).50 The
former got rid of parole in the federal system and created the
mandatory United States Sentencing Guidelines (“Guidelines”)
and the Sentencing Commission. The latter statute delivered the
48
49
50

Id. at 716.
Pub. L. No. 98-473, 98 Stat. 1987 (1984).
Pub. L. No. 99-570, 100 Stat. 3207 (1986).

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kill shot51 to proportionality by both instituting mandatory minimum sentences for a variety of narcotics and creating a 100:1
ratio between the amount of powder cocaine and crack cocaine
necessary to trigger the thresholds for those mandatory minimums.52 All of this was thoroughly bi-partisan; Democrats sponsored the bills, and President Reagan happily signed them into
law. The cooperation between ideological opponents is perhaps
most clearly revealed in the identities of the two most vigorous
proponents of the Sentencing Reform Act in the Senate: archconservative Strom Thurmond and paradigmatic liberal Ted
Kennedy.53
The journey to that moment may have begun at a dinner party
thrown by Ted Kennedy in 1975. Among the guests was Marvin
E. Frankel, a former Columbia law professor who had become a
federal judge in New York City. Frankel had written a book
urging sentencing reform with the provocative title “Criminal

51 To call a piece of legislation the “kill shot” is an unusually violent allusion,
but criminal law is all about violence, on both sides. Crimes are often violent
or create the risk of violence (as drug crimes do). On the government side, it
is necessarily through violent coercive force—beginning, often, with a door
being broken down, a dog being shot, and people being pushed to the floor
—that criminals are apprehended and (later) imprisoned. This circle of violence should not be ignored when we consider how we structure our system
of criminal law. More incarceration inexorably creates more violence and
threatened violence.
52 Though it sounds like the product of social science, the 100:1 ratio was
simply made up for political effect; no rationale for the ratio was discussed in
the legislative history. William Spade, Jr., Beyond the 100:1 Ratio: Towards
a Rational Cocaine Sentencing Policy, 38 ARIZ. L. REV. 1233, 1252 (1996).
Moreover, “[t]he 1986 ADAA not only added to the growing number of
mandatory minimum statutes but it also established that mandatory penalties
are driven by the quantity of drug involved in the offense and not the culpability of the offender.” Larry E. Walker, Law and More Disorder! The Disparate Impact of Federal Mandatory Minimum Sentencing for Drug Related
Offenses on the Black Community, 10 J. SUFFOLK ACAD. L. 97, 115 (1995)
(citations omitted).
53 Stith & Koh, supra note 5, at 224, 258.

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Sentences: Law Without Order.”54 From these genteel beginnings, grew a movement that encompassed law professors and
judges as well as politicians. The center of the discussion, beginning in 1974, was a workshop focused on sentencing disparities
at Yale Law School, funded by the Guggenheim foundation and
convened by Professor Daniel J. Freed.55
The impetus toward reform may have included deliberation
and academic debate, but the laws that resulted, particularly the
ADAA, were hurried, muddled and thoughtless. That law was
pushed through just a few weeks before the 1986 Congressional
elections—which definitely mattered. As Anthony Lewis wrote
in the New York Times as the bill was being finalized, “The
spectacle of the month in Washington has been the Gadarene
rush of politicians to the drug issue. Democrats in the House of
Representatives vied with President Reagan and his followers
for the most ferocious posture in the crusade against drugs.”56
Media reports, rather than systemic study, appear to have driven
this lurch in policy.57
Indeed, the legislation was the most unlikely result of a major
college basketball upset on February, 20, 1986. On that day, unranked Maryland (4-7 in conference play) beat the #1 nationally
ranked (and undefeated in conference play) North Carolina Tar
Heels, 75-72, in overtime at the recently opened Dean E. Smith
MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER
(1972).
55 KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING
GUIDELINES IN THE FEDERAL COURTS (1998).
56 Anthony Lewis, Abroad at Home; The Political Narcotic, N.Y. TIMES,
Sept. 29, 1986 available at http://www.nytimes.com/1986/09/29/opinion/a
broad-at-home-the-political-narcotic.html?pagewanted=print. His use of the
term “Gadarene rush” refers to events described in the Bible. Jesus encounters a man inhabited by a demon in the land of the Gadarenes, and casts
the demon into a herd of pigs. The pigs then rush down a steep bank into the
sea, where they drown. Mark 5:9–13.
57 Alyssa L. Beaver, Getting a Fix on Cocaine Sentencing Policy: Reforming
the Sentencing Scheme of the Anti-Drug Abuse Act of 1986, 78 FORDHAM L.
REV. 2531, 2568 (2010).
54

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Arena in Chapel Hill.58 The game cast Maryland sensation, Len
Bias, into the national spotlight. Bias scored 35 points and personally outscored the Tar Heels, 8-4, in overtime play.59 He
made a phenomenal reverse dunk off a stolen in-bounds pass
that has been viewed worldwide.60 Bias went on to be drafted
second in the nation by the Boston Celtics on June 17, 1986, but
died from an overdose of cocaine (powder not crack, but widely
reported or assumed as crack) just two days later.61 “U.S. House
Speaker Tip O’Neill – whose district included Boston, where
Bias would have played professional basketball—made passing
a new drug statute a priority.”62 A former counsel to the House
Judiciary Committee at the time described it this way in later
Congressional testimony in 1993:
The Controlled Substances Act sentencing provisions were initiated in the [House] Subcommittee
on Crime in early August 1986 in a climate in the
Congress that some have characterized as frenzied. Speaker O’Neill returned from Boston after
the July 4th district work period where he had
been bombarded with constituent horror and outSee, e.g., Tom Socca, Len Bias in Chapel Hill: February 20, 1986,
SLATE.COM (Feb. 20, 2011, 4:53 PM), http://www.slate.com/blogs/scocca/2011/
02/20/len_bias_in_chapel_hill_february_20_1986.html.
59 Id.
60 Id. You may see this incredible dunk at: ACC Digital Network, Maryland’s Len Bias (1986) - ACC Best Dunk Contest, YOUTUBE (Feb. 18, 2013),
http://www.youtube.com/watch?v=YoCS1fFyTXA.
61 See, e.g., William Spade, Jr., Beyond The 100:1 Ratio: Towards a Rational
Cocaine Sentencing Policy, 38 ARIZ. L. REV. 1233, 1249–51 (1996); Adam M.
Acosta, Comment, Len Bias’ Death Still Haunts Crack-Cocaine Offenders
After Twenty Years: Failing to Reduce Disproportionate Crack-Cocaine Sentences Under 18 U.S.C. § 3582, 53 HOW. L.J. 825, 826 (2010); LaJuana Davis,
Rock, Powder, Sentencing—Making Disparate Impact Evidence Relevant in
Crack Cocaine Sentencing, 14 J. GENDER RACE & JUST. 375, 381–86 (2011).
62 Davis, supra note 62, at 382; see also Spade, supra note 52, at 1249 (footnote omitted) (“The passage of the Anti-Drug Abuse Act of 1986 (“1986
Act”) was significantly motivated by the death of University of Maryland
basketball star, Len Bias, in June, 1986.”).
58

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rage about the cocaine overdose death of NCAA
basketball star Len Bias after signing with the
championship Boston Celtics. The Speaker announced that the House Democrats would develop an omnibus anti-drug bill, easing the
reelection concerns of many Democratic members
of the House, by ostensibly preempting the crime
and drug issue from the Republicans who had
used it very effectively in the 1984 election season.
The Speaker set a deadline for the conclusion of
all Committee work on this bill as the start of the
August recess—five weeks away. The development of this omnibus bill was extraordinary. Typically members introduce bills which are referred
to a subcommittee, and hearings are held on the
bills. Comment is invited from the Administration,
the Judicial Conference, and organizations that
have expertise on the issue. A markup is held on a
bill, and amendments are offered to it. For this
omnibus bill much of this procedure was dispensed with. The careful deliberative practices of
the Congress were set aside for the drug bill.63

Included in this reform were a few dramatic weight shifts within
federal sentencing. One, of course, was an obvious shift from a
system that emphasized rehabilitation (through parole and the
wide availability of probation) to one that primarily served the
goals of incapacitation and retribution (through mandatory
guidelines and statutory minimums). The second was more subtle: The shift of discretion from judges to prosecutors. This was
accomplished, in large part, by that same mechanism of
mandatory guidelines and statutory minimums—rules triggered
by charging decisions that are in the sole discretion of
prosecutors.
63

Spade, supra note 52, at 1250.

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Thus, in the space of a few years, Congress radically transformed federal sentencing by ditching parole, establishing
mandatory guidelines, ratcheting up narcotics sentences, taking
discretion away from judges and establishing what Justice Scalia
called a “junior varsity Congress” (the Sentencing Commission).64 What might be more surprising than this swirl of activity
is the historical fact that, once Congress finished all this, they
pretty much lost interest in the subject until the passage of the
Fair Sentencing Act in 2010.65 Even when Justice Breyer’s remedial opinion in Booker66 expressly invited Congressional action
in the clearest possible terms — “The ball now lies in Congress’s
court”67—Congress, for the most part, sat on its hands.
A few notable laws ratcheted up sentences even more over
the next two decades, but these movements were relatively minor, sporadic and did nothing to address the problems that were
emerging. In fact, they exacerbated those problems, especially
the exploding prison population. In 1988, Congress passed another (much less significant) Anti-Drug Abuse Act,68 this time
including simple possession of crack as a fact triggering a fiveyear mandatory minimum sentence. Similarly, in 2003, the “Feeney Amendment”69 made a few limited changes that shifted
more power to prosecutors.70 Overall, though, Congress left the
mechanizations of sentencing to the Sentencing Commission
rather than addressing the increasingly obvious problematic exMistretta v. United States, 488 U.S. 361, 413 (1989) (Scalia, J., dissenting).
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010).
66 543 U.S. 220, 263 (2005) (Breyer, J., delivering the opinion of the Court in
part on the remedial provisions).
67 Id. at 265.
68 Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (1988).
69 The Feeney Amendment was part of the PROTECT Act of 2003, Pub. L.
No 108-21, 117 Stat. 650 (2003). The Amendment was named after its sponsor, Representative Tom Feeney of Florida. For a worthwhile and comprehensive discussion of the Feeney Amendment, see Stephanos Bibas, The
Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea
Bargain, 94 J. CRIM. L. & CRIMINOLOGY 295 (2004).
70 Id.
64
65

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plosion in incarceration. In fact, Congress’s most important action in this period may have been one intended to simply
maintain the status quo. In 1995, they expressly rejected a Sentencing Commission proposal to get rid of the 100:1 ratio between crack and powder that was embedded in the Guidelines.71
It cannot be said that Congress did not know what was going
on. Congress insisted that the Sentencing Commission periodically report on the state of sentencing and incarceration, and the
Sentencing Commission dutifully reported in 1995, 2002 and
2007 that over-incarceration driven by mandatory minimums
was bloating prison populations.72 Nothing happened.
In all, this is a fascinating historical arc: A spasm of Congressional activity in the mid-1980s, followed by a long period of
inactivity during which it became clear that the spasm of activity
created a machine which was remarkably expensive, racially unfair and grossly inefficient. Only now, 25 years later, are there
signs of serious Congressional attention turning towards what is
going on in federal criminal law and sentencing.
B.

The roots of congressional attention and inaction

The primary role of Congress in creating the incarceration explosion (and then ignoring it) is, at a theoretical level, baffling.
Congress’s use of blunt objects like mandatory minimums to
jack up incarceration rates flatly contradicts the core values of
both parties. Conservatives, above all else, argue that the federal government should be less intrusive and less expensive.
Progressives believe that the federal government should be
used, where possible, to help individuals lead fuller and more
productive lives and are particularly conscious of the needs of
minority groups and the less affluent. A vast system of warehousing non-violent drug offenders who could just as easily be
prosecuted by the states not only fails to serve any of these
71
72

Pub. L. 104-38, 109 Stat. 334 (1995).
Beaver, supra note 57, at 2550–52.

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goals, it pulls in opposition to them. Republicans voted to shove
the power of the federal government onto the streets and into
areas traditionally reserved to the states, and Democrats voted
to needlessly ruin families and create shocking racial disparities
in the operation of criminal law. Both sides then remained silent
while the undermining of their values became increasingly obvious. How could this have happened?
The answer lies in Congress’s nature as a creature of politics.
Of those actors we examine here, Congress is the most overtly
political. Judges, members of the Sentencing Commission and
the Attorney General are all nominated by the President and
confirmed by the Senate and, thus, are to some degree products
of politics, but elections do not stare them in the face. Members
of Congress are nearly always raising money and running for
office, and that matters.
Why it matters was acutely observed by the late William
Stuntz: “For legislators, pleasing voters might mean producing
rules the voters want. But this requires that the rules be simple
and understandable, the sort of thing politicians can use in campaign speeches and advertisements.”73 Those simple, understandable rules, such as mandatory minimums, almost always
serve the base instinct of punishment. The countervailing principles which cut the other way—proportionality and parsimony—
are fraught with complexity and heavy with nuance and background. They make terrible sound bites.
If we accept that construct, it makes Congress’s actions understandable. The spasm of activity in the mid-1980s, all of it leading towards greater punishment, was simple and popular. The
inactivity that followed was driven by the fact that no one
wanted to try to explain why, exactly, it was wise to turn the
incarceration bus in the other direction.

73 William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L.
REV. 505, 530 (2001).

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In terms of moral culpability, the willful inaction of Congress
for two decades may be darker than the spasm of lawmaking
from 1984 through 1986. The initial fit of lawmaking might, perhaps, be blamed on confusion or a failure to think through the
consequences. The inaction that followed, however, stretched
well into the period where those consequences (the ones laid
out end to end like dead bodies in section II) were clear to see.
There was no confusion; the results were plain. This was something else: this was cowardice. As an internal critic, Senator Jim
Webb, put it in 2009, “Our failure to address this problem has
caused the nation’s prisons to burst their seams with massive
overcrowding, even as our neighborhoods have become more
dangerous. We are wasting billions of dollars and diminishing
millions of lives.”74
The period of political cowardice seems to be coming to an
end. With the Fair Sentencing Act of 2010 (which changed the
mandatory minimum thresholds for crack), Congress took a first
step in the other direction and has considered others. This reevaluation, like the initial spasm of activity, has united ideological opposites as progressives have been joined by Tea Party favorites such as Senators Rand Paul and Mike Lee in seeking
further reforms.75
IV.

THE SENTENCING COMMISSION

AND

DISCRETION

We believe the Sentencing Commission is one of the most significant culprits in the federal mass incarceration explosion,
even though it did not act alone. The Sentencing Commission
worked hand-in-hand with its creator and co-conspirator, ConJim Webb, Why We Must Fix Our Prisons, PARADE MAGAZINE (Mar. 29,
2009), available at http://www.parade.com/104227/senatorjimwebb/why-wemust-fix-our-prisons/.
75 Henry C. Jackson, Sentencing Laws Draw Attention in Congress, BOSTON
GLOBE, Jan. 12, 2014, available at http://www.bostonglobe.com/news/nation/
2014/01/12/push-for-sentencing-changes-underway-congress/LUsnF58ZrcDI
nRjrBZRNkI/story.html.
74

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gress, to guarantee dramatically harsher sentences. The implementation of the Guidelines promulgated pursuant to the SRA
and Congress’s insatiable appetite for mandatory minimum
sentences ignited and fueled the mass incarceration explosion.76
From its very birth in 1984, the Sentencing Commission utilized its considerable discretion to astoundingly increase the
length of sentences. Lest there be any doubt that the Guidelines
often impose uber harsh sentences, sometimes the Guideline
range exceeds the statutory maximum authorized by Congress!77
What possible rationale justifies this? The Guidelines have
mostly operated like a one-way upward ratchet, where the Sentencing Commission frequently raises them with ease and rarely
lowers them.78 Since the inception of the Guidelines “the Commission has raised sentences far more often than it has reduced
76 This view is not idiosyncratic of the authors. Judge Bennett’s highly regarded colleague and nationally recognized sentencing expert, U.S. District
Court Judge Lynn Adelman of the Eastern District of Wisconsin, recently
wrote: “The unremitting growth of the federal prison population is a direct
result of the Sentencing Reform Act (“SRA”) of 1984, the United States
Sentencing Guidelines (“the guidelines”) promulgated pursuant to the SRA
by the United States Sentencing Commission (“the Sentencing Commission”), and statutes imposing mandatory minimum prison sentences for many
offenses, particularly drug offenses.” Lynn Adelman, What the Sentencing
Commission Ought to be Doing: Reducing Mass Incarceration, 18 MICH. J.
RACE & L. 295, 296 (2013); Conyers, supra note 4, at 380 (footnotes omitted)
(“The United States Sentencing Commission highlighted the multiple ways in
which federal mandatory minimum sentences have contributed to the growing federal prison population. The commission found that mandatory minimums apply to more offenses, impose longer terms of imprisonment, and are
used more frequently by prosecutors than they were 20 years ago.”); Anne R.
Traum, Mass Incarceration at Sentencing, 64 HASTINGS L.J. 423, 449–51
(2013) (observing that the Guidelines and mandatory minimums created a
rigid scheme that constrained judicial discretion to impose lower sentences).
77 See, e.g., United States v. Craig, 703 F. 3d 1001, 1002 (7th Cir. 2012)
(Guideline range of life exceeds statutory maximum of 30 years).
78 Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines:
A Structural Analysis, 105 COLUM. L. REV. 1315, 1315 (2005). Bowman also
argues that the concentration in sentencing power away from federal judges
and towards the Department of Justice and Congress “has made the guidelines a one-way upward ratchet increasingly divorced from considerations of

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them. Every crime du jour appears to prompt an increase in
punishment and a press release.”79 Thus, harshness in sentencing
became the Sentencing Commission’s oxygen and mantra.80 As
Professor Bowman has observed: “At or near the root of virtually every serious criticism of the guidelines is the concern that
they are too harsh, that federal law requires imposition of prison
sentences too often and for terms that are too long.”81 Professor
Marc Miller echoes these concerns: “Perhaps the increased severity should not be surprising, since the federal system is a
modest but important part of a national system with overall imprisonment rates that would make the administrators of the Gulag jealous.”82
The Sentencing Commission deftly accomplished their goal of
astonishing harshness in drug sentences with subtle slight-ofhand. Discretionary policy judgments were made by ignoring
“the views and evidence presented by the judiciary, the defense
bar, and others who advised against its proposals.”83 After the
fact disclosure of the Sentencing Commission’s rationale was
virtually non-existent.84 While harshness was the Sentencing
Commission’s mantra, transparency was their anathema. While
the early Sentencing Commission could have adopted open
meetings and procedures based on transparency, it opted insound public policy and even from the commonsense judgments of frontline
sentencing professionals who apply the rules.” Id. at 1319–20.
79 Albert W. Alschuler, Disparity: The Normative and Empirical Failure of
the Federal Guidelines, 58 STAN. L. REV. 85, 86 n. 1 (2005).
80 Adelman, supra note 76, at 296–97 (footnote omitted) (“For many offenses, the Commission ignored past practice and, with little or no explanation, established much harsher sentences”).
81 Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines:
A Structural Analysis, 105 COLUM. L. REV. 1315, 1328 (2005).
82 Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers,
56 STAN. L. REV. 1211, 1222 (2004) (footnote omitted).
83 Amy Baron-Evans & Kate Stith, Booker Rules, 160 U. PA. L. REV. 1631,
1643 (2012).
84 See, e.g., Adelman, supra note 76, at 302 (“Without explanation, the Commission chose to structure the drug trafficking guideline based on quantities
that [the Anti-Drug Abuse Act of 1986] set”).

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stead for private meetings, but included the DOJ’s ex officio
commissioner, engaged in ex parte communications with DOJ
staff, law enforcement officials and others that were not recorded, and often provided no or very little explanation or rationale for its amendments.85 Indeed, as Ms. Baron-Evans and
Professor Stith wrote: “Just before resigning, Commissioner
Michael Block put the matter more bluntly: ‘At times it appears
that a majority of the Commission is actively seeking an ‘information free’ environment in which to make sentencing policy.’”86 Early on in the process of promulgating the Guidelines,
the federal judiciary’s efforts to persuade the Sentencing Commission to moderate the harshness of the Guidelines were rebuffed as the DOJ was simultaneously exerting its influence for
harsher sentences.87 “Judges and practitioners watched with
alarm as the Commission ignored the views and evidence
presented to it and set about implementing an unexplained
agenda that profoundly altered federal sentencing in ways the
SRA’s framers clearly did not intend.”88
This is illustrated by the Sentencing Commission’s promulgation of the drug guidelines. Unsurprisingly, the Sentencing Commission proceeded to promulgate guidelines establishing very
harsh sentences.89 Everyone, including virtually all federal
judges, assumed the drug guidelines were going to be based on
empirical data from the thousands of prior drug sentences the
Sentencing Commission gathered prior to the promulgation of
the drug guidelines. The Sentencing Commission claimed that it
Baron-Evans & Stith, supra note 83, at 1643–44.
Id. at 1645 (footnote omitted).
87 Id. at 1645.
88 Id.
89 Adelman, supra note 76, at 302 (“The Commission generally displayed a
pro-prosecution bias, and its members viewed the Department of Justice and
the most law-and-order members of Congress as their primary political constituency. As judges began to impose the sentences required by the guidelines, the federal prison population began to shoot up. In the pre-guideline
era, judges imposed harsh sentences only when they believed them necessary
but, under the guidelines, harshness became ‘a rule of law.’ ”).
85
86

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reviewed 10,000 pre-sentence reports from fiscal year 1984 and
100,000 cases from the computerized files of the U.S. Administrative Office from 1983 to 1985 (not just drug cases, but all
types of criminal cases).90 Even though the Sentencing Commission farmed this data, it immediately, and arbitrarily, without
explanation then or now, jettisoned the nearly 50% of federal
sentences where a defendant was given probation—thus hijacking realistic data from prior federal sentencing practices.91
To make matters worse, the Sentencing Commission abandoned
the empirical approach of prior sentences, even with the skewed
data of eliminating cases with probation, for a new, significantly
harsher approach.
The SRA required the Sentencing Commission to gather the
prior sentencing data from drug cases.92 In a strange twist, while
“empirical data on drug trafficking offenses were gathered . . .
they had no role in the formulation of the Guidelines ranges for
drug trafficking offenses.”93 We find this shocking. Instead, the
Sentencing Commission linked the drug guidelines to the then
recently enacted “basketball star Len Bias death by drug overU.S. SENTENCING COMM’N, SUPPLEMENTAL REPORT ON THE INITIAL SENGUIDELINES AND POLICY STATEMENTS 16–21 (1987).
91 Miller, supra note 82, at 1222; Lynn Adelman & Jon Deitrich, Improving
the Guidelines Through Critical Evaluation: An Important New Role for District Courts. 57 DRAKE L. REV. 575, 578 (2009) (footnotes omitted) (“[I]n
determining preguideline sentencing practice, the commission arbitrarily excluded sentences of probation. This decision significantly skewed the data
relating to past practices because approximately 50% of defendants in the
preguideline era received sentences of probation”).
92 28 U.S.C. § 944(m) (2006) required that “as a starting point in its development of the initial sets of guidelines for particular categories of cases, the
Commission ascertain the average sentences imposed in such categories of
cases prior to the creation of the Commission, and in cases involving
sentences of imprisonment, the length of such terms actually served.” It goes
on to indicate that the Commission “[S]hall not be bound by such average
sentences. . .”
93 United States v. Diaz, No. 11–CR–00821–2 (JG), 2013 WL 322243, at
*4–11 (E.D.N.Y. Jan. 28, 2013); see also United States v. Hayes, 948 F. Supp.
2d 1009, 1022–23 (N.D. Iowa 2013) (Bennett, J.).
90

TENCING

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dose catalyst” legislation—the ADAA—which sailed through
Congress without the traditional committee hearings or Senate
and House reports.94 In doing so, the Sentencing Commission
belied its essential claim in 1987 that the Guidelines “mirrored”
past sentencing practices. In the 1987 Introduction to the Federal Sentencing Guidelines Manual, the basic claims were (1)
that it “mirrored” past practices based on empirical data of prior
sentences, and, (2) that while “the guidelines do not perfectly
reflect past practices, it also portrays guidelines that do not stray
very far or very often from their empirical ‘starting point.’ ”95
This claim of “mirroring” was an obvious attempt to gain credibility with judges and others. We see it like Miller and Wright—
a carnival funhouse mirror riddled with distortions.96
The Sentencing Commission’s decision to completely reject
the prior empirical evidence of prior drug sentences and to substitute, virtually without explanation, drug guidelines triggered
to the mandatory minimums of the ADAA, is, in the authors’
view, the most significant act of discretion by the Sentencing
Commission that has fueled mass incarceration at the federal
level. As Judge Gleeson so eloquently wrote in Diaz:
The increased severity of federal drug trafficking
sentences is an integral part of the story of mass
incarceration. In less than a decade, from 1985 to
1991, the length of federal drug trafficking
sentences increased by over two-and-a-half times.
Sentences for drug trafficking were “elevated
above almost every serious crime except murder.
The increase in sentence length for drug offenders
Diaz, 2013 WL 322243, at *4–7; see also Hayes, 948 F. Supp. 2d at
1014–31. Both opinions contain detailed history and criticisms of the development of the Commission’s drug Guidelines and the judges’ policy disagreements with them.
95 Marc L. Miller & Ronald F. Wright, Your Cheatin’ Heart(Land): The
Long Search for Administrative Sentencing Justice, 2 BUFF. CRIM. L. REV.
723, 727 (1999).
96 Id. at 760.
94

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“was the single greatest contributor to growth in
the federal prison population between 1998 and
2010.”97
We agree with U.S. District Court Judge Lynn Adelman’s assessment of the drug guidelines, “the deeper problem is that the
sentences called for by this guideline are based on virtually
nothing—not on past practice, not Commission expertise about
the harm caused by drugs, and not on research. The guideline is
thus entitled to little respect.”98 Moreover, even post Booker
and Kimbrough “[r]ather than embrace judge’s new powers to
critically evaluate guidelines as an engine of feedback and constructive change, the Commission attempted to stifle it.”99 A
major part of this problem “has been the Commission’s attempts
Diaz, 2013 WL 322243, at *10 (footnotes omitted).
Adelman & Deitrich, supra note 91, at 584. Judge Gleeson has thoroughly
discussed the Commission’s lack of forthrightness in promulgating the drug
guidelines:
“The original Commission was far from forthright about the
role of its own data in formulating Guidelines ranges for drug
trafficking offenses. The Introduction to the first Guidelines
Manual contained the opaque understatement that the ADAA
“suggest[ed] or require[d] departure” from that data by “impos
[ing] increased and mandatory minimum sentences.” But the
Commission otherwise failed to discuss or explain this momentous decision. A later Commission—or at least the staff of a
later Commission—lamented this absence of forthrightness. In
2004 the Commission’s fifteen-year report to Congress had
these words for the original Commission’s failure to discuss
why it extended the “quantity-based” approach of the ADAA
across the entire spectrum of drug trafficking sentences:
‘This is unfortunate for historians, because no other decision
of the Commission has had such a profound impact on the
federal prison population. The drug trafficking guideline . . .
had the effect of increasing prison terms far above what had
been typical in past practice, and in many cases above the
level required by the literal terms of the mandatory minimum statutes.’ ”
Diaz, 2013 WL 322243, at *6 (footnotes omitted).
99 Paul A. Hofer, Beyond the “Heartland”: Sentencing Under the Advisory
Guidelines, 49 DUQ. L. REV. 675, 696–97 (2011).
97
98

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to maintain the language and procedures of the mandatory era,
while stigmatizing the exercise of judges’ new powers as ‘outside
the system.’ ”100 Indeed, it took the Sentencing Commission almost four years to even mention Booker and Kimbrough in the
Guideline Manual and, when it finally did, it emphasized only
the continuing importance of judges relying on the Guidelines
“and remained silent on how judges might identify unsound recommendations, provide feedback to the Commission and improve the sentences they impose.”101
Finally, it appears that the Sentencing Commission never
missies an opportunity to attempt to undo the effects of Booker
and argue for their pre-Booker self-invested mandatory regime
or at least try and get judges to move closer to the mandatory
regime. For example in attempting to play the powerful “race
card,” the Sentencing Commission has twice reported that in the
post Booker world judges have increased black-white sentencing
disparity.102 The Starr and Rehavi comprehensive empirical
study totally undermines the Sentencing Commission’s claims.
Their research “suggests that racial disparities in recent years
have been largely driven by the cases in which judges have the
least sentencing discretion: those with mandatory minimums.”103
While their “assessment of Booker is more tentative, but we find
no evidence that it increased racial disparity. The Sentencing
Id. at 696.
Id. (footnote omitted). Indeed, “[i]n 2010, the Commission admonished
judges that mitigating offender characteristics should not be given ‘excessive
weight’ and that their ‘most appropriate use’ is ‘not as a reason to sentence
outside the applicable guideline range,’ but to determine the sentence within
the guideline range.” Id.
102 Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker, 132 YALE.
L. J. 2, 4–5 (2013) (citing U.S. SENTENCING COMM’N, DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES: AN UPDATE OF THE BOOKER
REPORT’S MULTIVARIATE REGRESSION ANALYSIS 3 (2010) and U.S. SENTENCING COMM’N, CONTINUING IMPACT OF Booker on Federal Sentencing
108 (2013)).
103 Id. at 78.
100
101

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Commission’s contrary conclusion is based on deeply flawed
methods.”104 Starr and Rehavi are also deeply concerned about
any proposals to attempt to reduce racial disparity in sentencing
by imposing stricter restraints on sentencing “especially those
that entail expanding mandatory minimums” because the authors found “that prosecutors file mandatory minimums twice as
often against black men as against comparable white men.”105
There is, however, despite this backdrop of harshness and inflexibility of the Sentencing Commission, a small ray of hopeful
change. As discussed in section VII, there may be some progress, although baby steps, by the Sentencing Commission to reduce mass incarceration.
It is companionate that the next section of this article focuses
on the DOJ. The advent of the Guidelines shifted enormous and
unprecedented power and discretion that had historically, since
the founding of the nation, been in the hands of federal district
court judges to federal prosecutors.
V.

FEDERAL PROSECUTORS
A.

AND

DISCRETION

The power prosecutors received

Prosecutors were the great beneficiaries of the shift of discretion embedded in the “reforms” of the mid-1980s.106 Congress,
abetted by the Sentencing Commission, made sure that prosecutors had all the power they might desire.
Even before this shift, of course, federal prosecutors had a
significant power that state prosecutors lack — the ability to set
their own agendas rather than reacting to street crime. As William Stuntz put it, “there is an enormous amount that federal
prosecutors can do — the federal criminal code covers most of
the ground state criminal codes cover — but very little that they
104
105
106

Id.
Id. (footnote omitted).
See supra Part II.

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must do.”107 The discretion given to federal prosecutors by Congress was piled on top of this already-existing and unique power
to pick and choose.
To understand the full range of powers that the mid-80s transformation of criminal law gave to federal prosecutors, it is helpful to consider three of the most apparent system features which
effectuated this shift: an elimination of second-chance mechanisms like parole, mandatory minimum, and sentencing guidelines, both mandatory or advisory.
1.

The lack of second-chance mechanisms

Until the SRA, parole was a part of the federal scheme and
had a dramatic effect on shortening sentences. Importantly, parole gave the system a chance to actively consider rehabilitation
in real time — the parole board could consider the behavior of
the prisoner during their incarceration. The elimination of parole took all of the power from the parole board and shifted it to
the other end of the process: those involved in the sentencing.
This shift, on its face, pushed power to both judges and prosecutors by cutting out another actor (the parole board) entirely in
determining the sentence that is actually served. The other two
innovations, mandatory minimums and sentencing guidelines,
were not so even-handed.
2.

Mandatory minimums

As Erik Luna and Paul Cassell have noted, mandatory minimums are not a new phenomena; in 1790 federal law required a
life sentence for murder and piracy and a ten-year sentence for
someone convicted of causing a ship to run aground.108 What is
107 William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH.
L. REV. 505, 543 (2001).
108 Erik Luna & Paul G. Cassell, Mandatory Minimalism, 32 CARDOZO L.
REV. 1, 9 (2010).

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new, though, is the role of mandatory minimums created as part
of the ADAA in narcotics cases—a major factor in the prison
population explosion chronicled in section II.
The establishment of mandatory minimums by Congress
could not have been more direct: Mandatory minimums restrict
judges. Importantly, they restrict judges by directly empowering
prosecutors in two distinct ways.
First, mandatory minimums are based on the charge of conviction and are usually embedded in the penal code itself within
the code section which makes an action a crime.109 Thus,
whether or not a mandatory minimum will apply depends on an
action of the prosecutor — specifically the choice of a charge.
Where mandatory minimums rest on findings of fact, the prosecutor also controls whether or not those facts are charged and
presented. For example, consider 21 U.S.C. § 841’s mandatory
minimum of five years if five grams of methamphetamine are at
issue. If a prosecutor has a case involving 5.2 grams of
methamphetamine, she can include that in the charge, which will
invoke the mandatory minimum. If she charges no amount or an
amount less than five grams, no mandatory minimum will apply.110 Similarly, if she chooses to enhance a sentence to reach a
mandatory minimum based on criminal history, the statute puts
the power to do so solely in her hands, because the mandatory
sentence applies only if she requests it by filing a § 851 information.111 The prosecutor can choose whether or not to bind the
judge. The judge has no corresponding power so long as a
mandatory minimum applies. Congressman John Conyers, Jr.,
has recently noted “mandatory minimums place the primary
sentencing discretion in the hands of one side of an adversarial
See, e.g., 21 U.S.C. § 841 (2012).
Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that the facts
supporting a mandatory minimum must be charged and found by a jury).
111 21 U.S.C. § 851(a)(1) (2012), which provides that a notice by way of information prior to trial or plea may be filed by the U.S. Attorney “stating in
writing the previous convictions relied upon.”
109
110

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process — the prosecution — rather than in the hands of a dispassionate judge.”112
Second, and perhaps more importantly, the presence of a
mandatory minimum gives the prosecutor great bargaining
power. In the case of narcotics, the mandatory minimums will
potentially apply to nearly all defendants in a conspiracy, including the most minor. Thus, a prosecutor can threaten to hit a minor participant with a mandatory minimum if they don not
cooperate against others, and that threat is backed up by the
power of the law and nearly three decades of such use.
3.

Mandatory/advisory sentencing guidelines

In much the same way, and at about the same time, that
mandatory sentences grabbed power from judges and handed it
to prosecutors, the creation of mandatory guidelines (via the
SRA) did much the same thing. Mandatory sentencing guidelines, by their nature, restricted the discretion of judges, and that
discretion flowed downhill to prosecutors.
There is one key difference, though. Mandatory minimums
are usually triggered by the charge or a few simple facts (such as
criminal history or the amount of drugs at issue).113 Guidelines,
in contrast, bounce up and down in response to a welter of complex factors. Mandatory minimums are essentially a charge offense sentencing, while guidelines were developed as a “real”
offense system that takes into account not only the crime as
charged but also any “relevant conduct” that the prosecutor
chooses to prove by a preponderance standard.114 In the end,
this is a distinction without a difference. The prosecutor controls
the charge, but she also controls the information that will serve
as the basis for the “relevant conduct.” One way or another, it
flows through her.
112
113
114

Conyers, supra note 4, at 385.
21 U.S.C. § 841 (2012).
U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 (2012).

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In 2005, of course, the Supreme Court ruled that to remain
constitutional the Guidelines were to be considered advisory
rather than mandatory.115 While this did pull back a bit from the
power shift to prosecutors, it left in place a process which remained centered on the Guidelines as a baseline sentence. Importantly, a federal district court judge still sits down to ponder
a sentence with a presentence investigation report that is primarily about calculating a guideline sentence — and which is still
cabined and framed by the information that the prosecutor
chooses to gather and provide to the probation officer who creates that report.
In each of these ways, prosecutors received broad discretionary powers in the 1980s. What they chose to do with it is an
intriguing story about the real roots of disparity.
B.

What federal prosecutors did with that power

A primary point of distinction between the state and federal
systems is that the federal government has a unified national hierarchy of prosecutors. All receive direction, directly or indirectly, from the Attorney General and his chief assistants at
Main Justice. This is distinct from state systems, where the top of
the hierarchy usually rests at a local level, in the person of the
County or District Attorney. A District Attorney is not governed by the state Attorney General; she is an independent
elected official who answers to local voters.
This distinction means that the Attorney General of the
United States has unique powers to create uniform policies
across the nation. In other words, to create uniformity in the use
of discretion by federal prosecutors, the Attorney General is
able to issue directives, which specifically limit or guide the use
of that discretion, and the ability to create systems of evaluation
115

Booker v. United States, 543 U.S. 220 (2005).

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to make sure that the local offices and individual attorneys follow those mandates.
The reforms of the mid-1980s sought to create uniformity in
sentencing by shifting discretion from judges to prosecutors.116
At a theoretical level, this made sense. Federal judges have remarkable independence and varied backgrounds — a patchwork
created by the bare fact that a Reagan appointee will be in the
courtroom next to a Clinton appointee, who will be next to an
Obama or Bush appointee. Though there is a hierarchy of precedential authority with the Supreme Court at the apex, judges do
not have the same kind of chain-of-command national hierarchy
that prosecutors do; there is no judicial equivalent to the Attorney General who is the boss of the organization, able to mandate policies great and small. Thus, giving prosecutors discretion
rather than judges would seem to move towards uniformity because within the DOJ there is the ability to enforce that uniformity through the exercise of discretion in individual cases.
However, that would only be true if the Attorney General did
issue strict directives limiting and guiding the use of these new
powers. That did not happen. The results were disastrous. At the
same time that Congress stopped paying much attention to federal sentencing, a series of Attorneys General failed to create
uniformity in the use of discretion by federal prosecutors.
Rather than issuing directives, the Attorneys General from
1986 through 2013 left the employment of these new powers
(and the old ones) to United States Attorneys and their assistants.117 Predictably, this created a riot of disparity, which only
now can be seen in its full wretchedness.
116 Patti Saris, who later became a federal judge and Chair of the Commission, was a staff attorney for the Senate Judiciary Committee when the Sentencing Reform Act of 1984 was passed. She remembered the core impetus
to be one of national uniformity in sentencing: “The rallying cry was: why
should a bank robber in California get a different sentence from a bank robber in Texas?” Alschuler, supra note 79, at 100.
117 The closest that these leaders came to leading was to put vague statements into the United States Attorney’s Manual, a largely ignored guide to

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Judge Bennett, in the context of sentencing Douglas Young, a
convicted crack dealer, laid bare the effects of this lack of institutional control.118 Young had been spared an enhancement to
his sentence under the provisions of 21 U.S.C. § 851,119 which
bumps up mandatory sentences based on criminal history. Importantly, though, this bump only occurs if the prosecutor files
information alleging the prior conviction. In other words, the
prosecutor, alone, controls the imposition of this stiff
enhancement.
The Young opinion established just how uneven the application of this important enhancement has been. In the Northern
District of Iowa (Judge Bennett’s district), for example, such enhancements were employed by prosecutors in about 79% of
cases. In neighboring Nebraska, though, where the same mechanism was used, an eligible § 851 defendant was more than
2,532% less likely to receive the enhancement.120 Compared to
the national median of eligible defendants, a § 851 eligible defendant in the Northern District of Iowa was 626% more likely
to receive the enhancement.121 Indeed the following graph demonstrates the disparity of § 851 enhancement between the neighboring districts and the Northern District of Iowa:

policy. See UNITED STATES ATTORNEYS’ MANUAL, http://www.justice.gov/
usao/eousa/foia_reading_room/usam/index.html (last visited Feb. 28, 2014).
118 United States v. Young, 960 F. Supp. 2d 881, 2013 WL 4399232 (N.D.
Iowa 2013).
119 21 U.S.C. § 851’s enhancement system was first developed in 1970, but
only bumped up crack cases in such dramatic ways after the mandatory minimums contained in the ADAA were in place. Young, 960 F.Supp 2d at 889.
120 Id. at 897.
121 Id. at 894.

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FREQUENCY OF § 851 ENHANCEMENT APPLICATION IN
SELECTED ADJACENT DISTRICTS
90.00%
80.00%

79.25%

70.00%
Application Rate

60.00%
50.00%
40.00%
30.00%
20.00%
7.50%

10.00%
0.00%

Iowa, N

Minnesota

3.13%

4.00%

Nebraska

S. Dakota

This disparity was not unusual; it turns out that federal prosecutors are wildly disparate not just in the Eighth Circuit but
across all circuits and far too many districts.122
Given that there was no unified directive about how to use
these powerful tools, we should not be surprised that the determining factor seems to have been simply whose hands held the
tools. This kind of disparity (among judges) was the exact concern of Congress in imposing the sentencing reforms of the mid1980s. Only now is there a realization that the problem is worse
amongst and between prosecutors.
There is hope, however. In August of 2013, Attorney General
Eric Holder issued new directives about the use of prosecutorial

122

Id. at App. E.

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discretion in charging.123 Specifically, Holder limited the use of
both weight-of-narcotic and criminal history enhancements in
some cases,124 a strikingly bold move in contrast with the laissezfaire attitude of prior Attorneys General. There is hope that momentum has shifted in a new and promising direction.
VI.

FEDERAL DISTRICT COURT JUDGES

AND

DISCRETION

As briefly discussed in section III, prior to the effective date
of the Guidelines on November 1, 1987, federal judges had virtually unlimited discretion to sentence from probation to the
statutory maximum in every case where a mandatory minimum
did not apply. Very few cases prior to the SRA and the ADAA
had applicable mandatory minimums — except in very rare
cases like treason and piracy.125 In fact, the number of
mandatory minimum penalties for federal crimes has proliferated over the past 20 years. “Since 1991, the number of
mandatory minimum penalties has more than doubled, from 98
to 195 today.”126 By the late 1960s “as mandatory minimum penalties for drug offenses became increasingly unpopular,” the
Nixon administration proposed and Congress “repealed nearly
all mandatory minimum penalties for drug offenses.”127 When
Congress rushed through the ADAA by bypassing “much of its
usual deliberative legislative process,” the Act created numerous mandatory minimums for federal drug offenses.128 This Act
123 Holder described the new policies in a speech to the American Bar Association in San Francisco on August 12, 2013. See Douglas A. Berman, Some
Sentencing-Related Highlights from AG Holder’s Remarks Today to the ABA,
SENTENCING LAW & POLICY (Aug. 12, 2013), available at http://sentencing.
typepad.com/sentencing_law_and_policy/2013/08/some-sentencing-relatedhighlights-from-ag-holders-remarks-today-to-the-aba.html.
124 Id.
125 U.S. SENTENCING COMM’N, REPORT TO THE CONGRESS: MANDATORY
MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 22 (2011).
126 Id. at 71–72.
127 Id. at 22.
128 Id. at 23-24.

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created quantity levels for different drugs that triggered various
mandatory minimums ranging from five years to life.129 The
ADAA “interacts with the Guidelines in an important way. It
trumps the Guidelines.”130 So, “ordinarily no matter what range
the Guidelines set forth, a sentencing judge must sentence an
offender to at least the minimum prison term set forth in a statutory mandatory minimum.”131 Not surprisingly, this passage of
the SRA and the ADAA correlates to a massive increase in the
number of federal prisoners:
Historically, in 1940 the federal Bureau of Prisons
(BOP) operated just 24 facilities compared to 118
now.132 From 1940 over the next four decades the
BOP population remained fairly constant at
around 24,000 inmates.133 The BOP population
mushroomed from 25,000 in 1980 to nearly
219,000 in 2012.134
The Supreme Court’s blockbuster decision in Booker,135 holding that the federal Guidelines were “advisory,” ushered in yet
another unprecedented era of federal sentencing reform by restoring some of the discretion to federal sentencing judges lost
by the previous mandatory nature of the Guidelines.136
Id. at 23.
Dorsey v. United States 132 S.Ct. 2321, 2327 (2012).
131 Id.
132 NATHAN JAMES, CONG. RESEARCH SERV., THE FEDERAL PRISON POPULATION BUILDUP: OVERVIEW, POLICY CHANGES, ISSUES, AND OPTIONS 2
(2013), available at https://www.fas.org/sgp/crs/misc/R42937.pdf.
133 Id.
134 Id.
135 543 U.S. 220 (2005).
136 The holding in Booker that the Guidelines were unconstitutional unless
“advisory” was based on the sentencing judge’s determination of a fact (other
than a prior conviction) that was not found by the jury or admitted by the
defendant which violated the defendant’s Sixth Amendment right to trial by
jury. The Court remedied the Sixth Amendment violation by excising the
provisions of the SRA that the Court held made the sentencing guidelines
“mandatory,” thereby rendering the Guidelines advisory in nature. Id. For a
129
130

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As Judge Bennett has previously written, “the post-Booker
broadening of judicial discretion has had virtually no impact on
mitigating the harshness of sentencing under advisory guidelines
rather than mandatory guidelines.”137 As the D.C. Circuit has
observed, “It is hardly surprising that most federal sentences fall
within Guidelines ranges even after Booker—indeed, the actual
impact of Booker on sentencing has been minor.”138 The average sentence imposed in terms of months, compared to the average guideline minimum has remained virtually constant from
1996 to 2011.139 Thus, federal sentencing judges, for the most
part, as a group, remain considerably wedded to the Guidelines.
Why is this?
We suggest there are many potential factors at work. The vast
majority of federal judges have never sentenced offenders other
than under the Guidelines regime. Thus, even with the recent
advent of the Guidelines morphing from mandatory to advisory,
federal judges by virtue of their experience, feel comfortable
with sentences within the Guideline ranges.
Judges are likely deeply connected to and influenced by the
Guidelines by the powerful psychological process known as cognitive anchoring.140 Compelling cognitive psychological research
on anchoring suggests that the mathematical ranges of the
Guidelines for each defendant strongly “anchor” the judge to
that Guideline range.141 Numerous psychological studies have
established the anchoring bias consistently produces systematic
more through overview of the federal sentencing process both pre and post
Booker, see Bennett, supra note 10, at 126–34.
137 Bennett, supra note 10, at 136.
138 U.S. v. Turner, 548 F.3d 1094, 1099 (D.C. Cir. 2008) (citing U.S. SENTENCING COMM’N, FINAL REPORT ON THE IMPACT OF United States v. Booker on
Federal Sentencing 57 (2006)).
139 U.S. SENTENCING COMM’N, BOOKER REPORT 2012 PART C (2012), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_
Testimony_and_Reports/Booker_Reports/2012_Booker/Part_C1_Overview.
pdf.
140 Bennett, supra note 10, at 116–26.
141 Id. at 107–26.

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errors in judgment in wide-ranging circumstances. 142 This includes judgments by professionals like doctors, lawyers, real-estate agents, psychologists and auditors.143 The anchoring effect
has also been recognized in a variety of decisions by foreign and
American federal and state judges.144 Surprisingly, the anchoring effect has been deemed robust even when the anchor is irrelevant, inaccurate, implausible, incomplete or even random.145
We believe this comfort level among federal sentencing judges
with the Guidelines has been perpetuated by the myth that most
of the Guidelines, including the drug guidelines, are based on
empirical historical data, alleged special expertise of the Sentencing Commission, and the Sentencing Commission’s exercise
of its characteristic institutional role—when in fact they are
not.146 Even the current 2013 Edition of the Federal Sentencing
Manual perpetuates this myth. In Chapter One of the Guidelines, The Basic Approach policy statement repeatedly refers to
the “empirical approach” of the Guidelines and discusses how
the Sentencing Commission “analyzed the data from over 10,000
presentence investigations . . .”147 As we explained in detail in
section IV, the Sentencing Commission’s unrelenting efforts to
persuade judges to conform their sentences to the Guidelines
appears to have initially worked well. We believe as more and
more judges become aware of the failings of the Guidelines, especially the drug guidelines, judges will engage in more Kimbrough justice.
Id. at 107–16.
Id. at 107–08.
144 Id. at 116–26.
145 Id. at 111–14.
146 See, e.g., Kimbrough v. United States, 552 U.S. 85 (2007) (holding that
judges had the right to vary downward from the crack guidelines, the Court
held: “. . . those Guidelines do not exemplify the Commission’s exercise of its
characteristic institutional role. In formulating Guidelines ranges for crack
cocaine offenses, as we earlier noted, the Commission looked to the
mandatory minimum sentences set in the 1986 Act, and did not take account
of “empirical data and national experience.”).
147 U.S. SENTENCING COMM’N GUIDELINES MANUAL ch. 1, pt. A (2013).
142
143

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VII.

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REVERSAL

OF

A.

FORTUNES

AND THE

NEW DISCRETION

The current momentum

Mass incarceration did not come about overnight and the solutions for it will not be implemented easily or quickly even
though it ought to be clear that there are too many people, especially people of color, in too many prisons, serving sentences
that are far too long, and that this mass incarceration serves no
legitimate penal or law enforcement rationale. But, we sense a
growing movement for change. For example, in the Congressional arena on August 3, 2010, President Obama signed into
law the first major reform of federal sentencing in years, The
Fair Sentencing Act of 2010 (Public Law 111-220) (FSA). This
law substantially reduced the sentencing disparity between crack
and powder cocaine which had been based on a 100:1 ratio to
18:1, but it did not go far enough.148 Indeed, in typical congressional fashion during the War on Drugs, Congress, in the FSA,
also directed the Sentencing Commission to ensure that the
Guidelines provide penalty increases for a variety of aggravating
148 A few federal judges, including Judge Bennett, refused to apply the harsh
100:1 ratio. See, e.g., Spears v. United States, 551 U.S. 261 (2009) (per
curiam) (the Supreme Court reversed the Eighth Circuit Court of Appeals
and affirmed Judge Bennett’s initial use of a 20:1 ratio). Prior to the passage
of the FSA, Judge Bennett decided that even the 20:1 ratio created too much
disparity between crack and powder defendants and reduced the ratio to 1:1.
See United States v. Gully, 619 F. Supp. 2d 633, 644 (N.D. Iowa 2009) (noting
that a categorical disagreement with the 100:1 guideline was based on several
reasons, not least of which was the failure of the Sentencing Commission to
exercise its characteristic institutional role in developing the crack guidelines,
the lack of any empirical support for the assumptions that motivated adoption of the 100:1 ratio, and the disparate impact of the ratio on black offenders). Then, in United States v. Williams, 788 F. Supp. 2d 847 (N.D. Iowa
2011), Judge Bennett decided the first post-FSA decision and refused to follow the politically compromised ratio of 18:1 contained in the FSA, detailing
its legislative history and simply finding no empirical or scientific rationale
for the 18:1 ratio. He continued to use a 1:1 ratio. Id. at 856–90. The 18:1 ratio
was indeed a ratio in search of a rationale. Id.

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factors for all drug offenses.149 Congress actually created 12 new
enhancements that potentially increase the Guideline range
across all drug types.150 However, following the Presidential
election in 2012, a number of sentencing reform bills aimed at
reducing mass incarceration by reducing the length of federal
sentences, especially in drug cases, have been filed in Congress.151 Bi-partisan press releases on these issue have been the
frequent subject of current media attention.152
Pub. L. No. 111-220 §§ 5–6, 124 Stat. 2372 (2010).
Id.
151 See, e.g., Justice Safety Valve Act of 2013, S. 619, 113th Cong. (2013–
2014) (this bipartisan legislation was introduced by Senator Rand Paul (RKY) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and
in the House a companion bill was introduced by Representatives Robert C.
“Bobby” Scott (D-VA) and Thomas Massie (R- KY). These bills propose a
broad “safety valve” that applies to all federal crimes carrying mandatory
minimum sentences. If passed, the Justice Safety Valve Act would allow
judges to sentence federal offenders below the mandatory minimum sentence
whenever the mandatory minimum does not promote the goals of punishment and other sentencing criteria listed at 18 U.S.C. § 3553(a)); Smarter
Sentencing Act of 2013, S. 1410, 113th Cong. (2013–2014) (this bipartisan
legislation introduced by Senators Durbin and Lee, would expand the “safety
valve” to allow a sentence below mandatory minimums, lower existing
mandatory minimums for specific drug offenses and would allow current prisoners to petition courts for a review of their case based on the FSA. There
is a House companion bill, H.R. 3382, which was introduced by Representatives Raul Labrador (R-ID) and Bobby Scott, (D-VA)); Recidivism
Reduction and Public Safety Act of 2013, S. 1675, 113th Cong. (2013–2014)
(this bipartisan legislation introduced by Senators Portman (R-OH) and
Whitehouse (D-RI) allows federal inmates to earn seven days more “good
time credit” each year for good behavior and obeying prison rules. This is a
technical fix to 18 U.S.C. § 3624(b), which the U.S. Supreme Court has interpreted to limit good time credit to 47 days per year, not the 54 days of credit
most believe Congress intended. The Act also allows federal inmates to earn
up to 60 days off their sentences for each year they participate in recidivism
reduction or recovery programs, in addition to their good time credits. Finally, the Act gives the BOP 3 years to ensure that all prisoners in need of
the Residential Drug Abuse Program enter the program in sufficient time to
finish it and receive the full one year sentence credit off their sentence for
completion of the program.)
152 See, e.g., Linda Greenhouse, Editorial, Crack Cocaine Limbo, N.Y.
TIMES (Jan. 6, 2014), available at http://www.nytimes.com/2014/01/06/opinion/
149
150

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On November 26, 2013, the Chair of the Sentencing Commission, Judge Patti Saris, sent a letter to the Chair and ranking
member of the Senate Judiciary Committee indicating that the
Sentencing Commission unanimously recommended to Congress that they consider statutory changes “to reduce the current
greenhouse-crack-cocaine-limbo.html?_r=0 (“President Obama earned a
rare moment of bipartisan acclaim last month when he commuted the
sentences of eight long-serving federal prisoners. Their crack cocaine offenses had resulted in the harsh penalties mandated by a sentencing formula
that Congress repudiated when it passed the Fair Sentencing Act of 2010.”);
Congress Shows Bipartisan Support Of Changing Mandatory Sentencing Law,
FOXNEWS (Jan. 5, 2014), http://www.foxnews.com/politics/2014/01/05/con
gress-shows-bipartisan-support-changing-mandatory-sentencing-laws/ (“An
unusual alliance of Tea Party enthusiasts and liberal leaders in Congress is
pursuing major changes in the country’s mandatory sentencing laws amid
growing concerns about both the fairness of the sentences and the expense of
running federal prisons.”); Press Release, U.S. Senator Patrick Leahy, Chairman, Senate Judiciary Committee, Statement On The First Session Of the
113th Congress Progress Made And Much Left Incomplete (Dec. 20, 2013),
available at http://www.leahy.senate.gov/press/statement-of-senator-patrickleahy_chairman-senate-judiciary-committee-on-the-first-session-of-the113th-congress-progress-made-and-much-left-incomplete (“I have come to
believe, however, that mandatory minimum sentences do more harm than
good. I chaired a hearing on Reevaluating the Effectiveness of Federal
Mandatory Minimum Sentences on September 18, 2013, and have been
working with both Democrats and Republicans on sentencing reform proposals.”); Press Release, U.S. Senator, Assistant Majority Leader, Statement On
Drug Sentencing Reform Speech By AG Holder (Aug. 12, 2013), available at
http://www.durbin.senate.gov/public/index.cfm/pressreleases?ID=a31a834d5d62-434a-81ff-8b671c64198f (“Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison
population. Once seen as a strong deterrent, these mandatory sentences have
too often been unfair, fiscally irresponsible and a threat to public safety. I
look forward to working with Attorney General Holder and the bipartisan
group of Senators that support reforming outdated laws that have proven not
to work and cost taxpayers billions.”); Sari Horowitz & Matt Zapotosky,
Holder’s Charging Order Aims to Reduce Prison Population, WASH. POST
(Aug. 13, 2013), available at http://www.washingtonpost.com/world/nationalsecurity/holders-charging-order-aims-to-reduce-prison-population/2013/08/12
/d0660a3e-0384-11e3-9259-e2aafe5a5f84_story.html (“Attorney General Eric
H. Holder Jr.’s proposed prison reforms drew praise from criminal justice
experts Monday, but some critics said the proposals do not go far enough to
begin overhauling a costly and broken law enforcement system.”).

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mandatory minimum penalties for drug trafficking,” make provisions of the FSA retroactive, expand the current “safety
valve” to waive mandatory minimum sentences for a broader
range of drug offenders with slighty greater criminal histories —
and for the first time expand it beyond drug cases.153 Additionally, the Sentencing Commission, on January 9, 2014, voted to
publish for public comment “proposed guideline amendments,
including possible reductions to the sentencing guidelines levels
for federal drug trafficking offenses.”154 In the accompanying
news release, Sentencing Commission Chair Judge Saris stated:
Like many in Congress and in the executive and
judicial branches, the Commission is concerned
about the growing crisis in federal prison populations and budgets, and believes it is appropriate at
this time to carefully consider the sentences for
drug traffickers, who make up about half of the
federal prison population.155
As forcefully argued by Judge Lynn Adelman in his seminal
article, it appears that the Sentencing Commission may have finally overcome its inordinate preoccupation and fixation with
inter-judge sentencing disparity and started making progress to
help reduce the nation’s mass incarceration, even if the progress
is, as we believe, a baby step.156 We view these developments by
the Sentencing Commission as encouraging signs, but much
more needs to be done.
153 Letter from Judge Patti B. Saris, Chair, U.S. Sentencing Commission, to
Patrick Leahy and Chuck Grassley, Senate Judiciary Committee Chairman
and Ranking Member, United States Senate 1–2 (Nov. 26, 2013), available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Submissions/20131126-Letter-Senate-Judiciary-Committee.pdf
154 Press Release, U.S. Sentencing Commission, U.S. Sentencing Commission Seeks Comment On Potential Reduction To Drug Trafficking Sentences
(Jan. 9, 2014), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Releases/20140109_Press_Release.pdf
155 Id. at 1–2.
156 Adelman, supra note 76.

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For the first time in our professional lives, the DOJ, on August 12, 2013, through Attorney General Eric Holder, in a historic and courageous announcement to the House of Delegates
of the American Bar Association, chartered a new course to
help reduce mass incarceration by stating: “It’s clear — as we
come together today — that too many Americans go to too
many prisons for far too long and for no truly good law enforcement reason.”157 The Holder Memo indicated that low-level,
nonviolent drug offenders with no ties to gangs or large-scale
drug organizations will no longer be charged with offenses that
impose severe mandatory sentences. Attorney General Holder
called for a change in DOJ policies to reserve the most severe
penalties for drug offenses for serious, high-level or violent drug
traffickers. This includes a new set of standards and review for
the draconian 21 U.S.C. § 851 enhancements that can double all
the way to a life sentence and mandatory minimums for certain
offenders with prior drug offenses, including old offenses that
were not even felonies under state law and for which the offender served no time. He directed his 94 U.S. attorneys across
the nation to develop specific, locally tailored guidelines for determining when federal charges should and should not be filed
and when § 851 enhancements should and should not be filed.158
While this is a very welcome, positive and important development, there is absolutely no assurance that the career prosecutors in the 94 federal district courts will actually carry out this
initiative. Of even greater concern is whether future Attorney

157 See Eric Holder, U.S. Attorney General, Address at the Annual Meeting
of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.
html.
158 Memorandum from Eric Holder, U.S. Attorney General, to the U.S. Attorneys and Assistant Attorneys General for the Criminal Division (Aug. 12,
2013), available at http://www.justice.gov/oip/docs/a-memo-department-policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-incertain-drugcases.pdf.

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Generals or the DOJ will continue to exercise their discretion to
reduce mass incarceration in these and other ways.159
We are also encouraged by the small but increasing number of
federal district court judges that are exercising their discretion
by writing opinions declaring policy disagreements with the
Guidelines. These judicial policy disagreements cut across a variety of Guideline applications. They share and express the belief that the Guidelines are too harsh.160
See id. (Judge Bennett has been very encouraged by the implementation
of the August 12, 2013, Holder memo by local Assistant U.S. Attorneys in
cases before him in the Northern District of Iowa. He has observed a recent
seismic shift in either not filing or in withdrawing § 851 enhancements. However, we are concerned about unwarranted sentencing disparity created by
inconsistent application of the Holder Memo across the 94 districts and the
total lack of transparency in disclosing how the Holder Memo is being utilized and if any statistical information of its application will be publically
disclosed.)
160 See, e.g. United States v. Dayi, 2013 WL 5878922 (D. Md. 2013) (Bredar,
J.) (holding that it was appropriate to vary downward by two levels from the
advisory Guidelines sentence in the sentences of all twenty-two defendants
involved in a conspiracy to distribute more than 1,000 kilograms of marijuana, resulting in a roughly 20 to 25 percent reduction in each defendant’s
sentence, based on a policy disagreement with the marijuana guidelines; the
court noted, inter alia, that the guidelines for marijuana-related offenses have
remained the same since 1987, but state law and federal enforcement policies
had changed significantly); United States v. Mallatt, 2013 WL 6196946 (D.
Neb. 2013) (Bataillon, J.) (varying downward from an advisory Guideline
range of 120 months for a “non-acting out” child pornography offender,
based on a policy disagreement with long terms of imprisonment under the
Guidelines for such offenders, and imposing a sentence of “time served” followed by 6 years of structured supervised release); United States v. Hayes,
948 F.Supp.2d 1009 (N.D. Iowa 2013) (Bennett, J.) (varying downward from
an advisory Guideline range of 151 to 188 months to a sentence of 75 months
on a methamphetamine offense, based on a policy disagreement with the
methamphetamine guidelines and a 25% reduction from a recalculated
Guideline sentence of 100 months, reflecting the policy disagreement, based
on the prosecution’s motion for a substantial assistance reduction under
U.S.S.G. § 5K1.1); United States v. Newhouse, 919 F. Supp. 2d 955 (N.D.
Iowa 2013) (Bennett, J.) (varying downward to 120 months from an advisory
Guideline range of 262 to 327 months, based on a policy disagreement with
the Career Offender guideline, where the Career Offender guideline more
than doubled the 120 month mandatory minimum for a § 851 offense, and
159

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B.

How to reverse federal mass incarceration

The same ability to exercise discretion that helped create federal mass incarceration should now be used to eliminate or dramatically reduce it. Here is what we believe needs to be done.
1.

Congress—much hope is on the horizon

Most importantly, Congress needs to take seriously its duty to
direct federal criminal law towards justice, efficiency and fairness rather than viewing it either as a subject to be avoided or a
field in which to score easy political points. Like foreign policy,
criminal justice is complex, fluid and involves diverse cultures.
“Tough on crime” is about as smart a slogan as “Tough on foreign policy” would be. There are several discrete steps Congress
should take.
First, the cycle of over-reaction and disinterest needs to end.
Constant attention is warranted, instead. A simple structural
more than quadrupled the 60-month mandatory minimum for a § 841 offense, and more than tripled the Guideline range (without a mandatory minimum) of 70 to 87 months, then granting the prosecution’s motion for a 20%
substantial assistance reduction down to 96 months); United States v.
Qayyem, 2012 WL 92287 (S.D.N.Y. 2012) (Wood, J.) (rejecting, on policy
grounds, the 500:1 equivalency for MDMA (“ecstasy”) to marijuana under
the Guidelines, and adopting 200:1 equivalency and finding that the most
closely related controlled substance to MDMA is a mixture of BZP and
TFMPP); United States v. Suarez-Reyes, 2012 WL 6597814 (D. Neb. 2012)
(Bataillon, J.) (varying downward from an advisory Guideline range of 27 to
33 months to 1 day of incarceration followed by 5 years of supervised release
based on a policy disagreement with the fraud guidelines driven by “amount
of loss” and congressional directive rather than empirical data and expertise);
United States v. Diaz, 2013 WL 322243, at *18 (E.D.N.Y. 2013) (Gleeson, J.)
(insightful and scathing critique of the drug guidelines and the Commission
and announcing intention to give the drug guidelines “very little weight” until the Commission “does the job right”). For a comprehensive discussion of,
and citations to, many additional cases articulating policy disagreements with
the Guidelines, See also, Scott Michelman & Jay Rorty, Doing Kimbrough
Justice: Implementing Policy Disagreements with the Federal Sentencing
Guidelines, 45 SUFFOLK U.L. REV. 1083 (2012).

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change would help with this. Currently, criminal justice is addressed by a subcommittee of the House Judiciary Committee
that also handles issues of terrorism and homeland security.161
This portfolio is too large. Criminal justice deserves its own subcommittee. More importantly, Congress should convene a blueribbon panel to recommend long-term changes to criminal law,
an idea championed by former Senator Jim Webb but never implemented. Such a convening would serve several functions, including the development of relationships between experts in the
field and decision-makers in Congress, a link that has been tenuous at best in recent years.
Second, with or without such a blue-ribbon Sentencing Commission, Congress needs to ratchet down the laws that it has,
starting with the mandatory minimum sentence provisions of 21
U.S.C. § 841, which should be tossed on the ash heap of history.
They were a foolishness based on a lie, that lie being that the
weight of narcotics at issue serves as a valid proxy for the relative culpability of a defendant. That simply is not true because
the people who make money off narcotics (and are most culpable) are the ones who never touch them and are hardest to
catch. Rather than bringing us kingpins, those mandatory minimums have stuffed our prisons with mules and street dealers because they are the ones who are easy to catch while holding onto
the threshold amounts of narcotics. These laws never solved a
problem and never will.162 A critical first step would be to pass
comprehensive legislation to dramatically reduce or eliminate
mandatory minimums for most crimes and to adopt some form
161 The Senate, in contrast, has a subcommittee of its own Judiciary Committee that focuses only on crime and drugs. See U.S. SENATE COMMITTEE ON
THE JUDICIARY SUBCOMMITTEE ON CRIME AND TERRORISM, http://www.judiciary.senate.gov/about/subcommittees#crime (last visited Feb. 28, 2014).
162 Congressman John Conyers, Jr., has written that “[m]andatory sentences,
long sentences for nonviolent first offenses, and laws mandating increased
penalties for repeat offenders lead to overincarceration. Often, Congress
promulgates mandatory minimum sentences in the heat of political passion.”
Conyers, supra note 4, at 385.

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or combination of the most progressive parts of the Justice
Safety Valve Act of 2013, the Smarter Sentencing Act of 2013
and the Recidivism Reduction and Public Safety Act of 2013. If
Congress exercised their discretion this way, it would maximize
the effect of reducing federal mass incarceration.
Third, Congress could easily redress a major and serious
structural flaw in the Sentencing Commission since its birth in
1984 – the lack of a defense community representative as a commissioner. It should immediately amend the SRA to add a representative from the defense community to the Sentencing
Commission as an ex officio member.163 This has been the recommendation of the Judicial Conference of the United States
after careful vetting through its rigorous committee process. The
DOJ has had such an ex officio member since the inception of
the Sentencing Commission. Unlike the defense community,
that DOJ member has always had unfettered access to the Sentencing Commission staff, data and fully participates in all private and public meetings of the Sentencing Commission. The
DOJ and the defender community, especially through an ex officio Sentencing Commissioner from the Federal Public Defender, should have equal opportunities before the Sentencing
Commission. This would enhance the perception of fairness of
the Sentencing Commission and give it a much needed and
more balanced perspective.164 It would also bring it in line with

163 State sentencing commissions offer a good example of diversity of background. For example, in Minnesota, the sentencing commission is required
by statute to be composed of one trial judge, one appellate judge, one justice
of the Supreme Court, a public defender, a county attorney, the commissioner of corrections, a peace officer, a parole or probation officer, and three
public members appointed by the governor. This last group must include one
crime victim. MINN. STAT. ANN. § 244.09, subdivision 2 (West 2014).
164 See, e.g., Douglas A. Berman, Common Law for this Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD L.
& POL. REV. 93, 99 (1999) (observing that the Commission “is disposed to
‘fight crime with more time’ ” and often fails to function in the expert fashion
it was intended to because “the SRA provides for a designee of the Attorney

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the majority of state sentencing commissions.165 This would
breathe life into Attorney General Holder’s statement that
“[o]ur laws and their enforcement must not only be fair, they
must also be perceived as fair.”166
In short, Congress needs to solve problems rather than create
them. That takes time, attention and compromise, and there is
increasing hope that Congress may favor us with all three. In the
words of Congressman Conyers: “Congress must take thoughtful action now to end mass incarceration and its disparate impact on African Americans.”167
2.

Department of Justice—the unprecedented leadership and
vision of Attorney General Holder

Attorney General Eric Holder’s recent movements towards
imposing more discipline among line prosecutors in using discretion is a sincere and meaningful step in the right direction. It
needs to be a first step and not the last. Otherwise, as outlined in
section V above, prosecutor-created disparities will continue.
To continue that walk towards real and proportional justice,
the DOJ needs to monitor and review the compliance of line
attorneys with the new requirements included in the Holder
memo of August 12, 2013. Sadly, the direction of Main Justice in
guiding such discretion in the past has been primarily through
the United States Attorney’s Manual, which is often ignored. If,
for example, the historical disparities created by differential use
General to be an ex officio member of the Commission, but provides no
equal vent representation to a member of the defense bar.”).
165 Richard S. Frase, State Sentencing Guidelines Still Going Strong, 78 JUDICATURE 173,174 (1995).
166 Eric Holder, U.S. Attorney General, Remarks at the Charles Hamilton
Houston Institute for Race and Justice and Congressional Black Caucus
Symposium: Rethinking Federal Sentencing Policy 25th Anniversary of the
Sentencing Reform Act (June 24, 2009), available at http://www.freerepublic.com/focus/f-chat/2278757/posts.
167 Conyers, supra note 4, at 387.

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of the enhancements pursued through 21 U.S.C. § 851 are to be
eliminated, the new limitations on that discretion need to have
teeth. Prosecutors, by dint of their work, are keenly aware of
what directives are advisory and what are mandatory. If consistency is to be achieved, the new directives need to be cleanly
communicated as mandatory, actions of prosecutors on the
ground need to be catalogued and a keen focus must be maintained on making sure that this new directive is truly normative.
In terms of hiring, the DOJ may want to consider new approaches. It might not be surprising that the use of discretion
varies so much by district, since hiring is by district. National
hiring of Assistant United States Attorneys could establish a
standard set of qualifications and skills to be sought, resulting in
more consistent outcomes. Importantly, this would also allow
for a more consistent valuation of the skills that matter most in
employing discretion — skills that are too often lacking in prosecutors whose primary goal is to rack up convictions and create
long sentences. While some will recoil at the suggestion of national hiring for prosecutors, such a reaction is misplaced; after
all, we do not object to the national hiring and training of FBI
agents by that same DOJ.
Moreover, the DOJ needs a solid dose of imagination as it
continues, properly, to try to limit the spread of illegal narcotics.
Rather than continuing to focus on the labor within that trade,
there is great promise in interdicting the cash flow instead—the
true lifeblood of any business. New solutions need to be sought
out, even as the old, failed answer is discarded.
At the same time, the DOJ needs to use its considerable
weight with some members of Congress to push for (or at least
not obstruct) meaningful reform of federal sentencing as Congress walks down the drastic measures imposed in the mid1980s, including mandatory minimums. It is counter-intuitive, of
course, to expect anyone to give up power, and mandatory minimums do give power to DOJ prosecutors. Still, the primary imperative for the DOJ is to pursue the moral value it should
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embody — justice. Mandatory minimums have led to injustice in
myriad ways, and enough time has passed and statistics compiled to accept that outcome as sad but true.
It may be too much to hope that the DOJ be a primary agent
of change as our society gently turns away from the harsh retributionist tone we have maintained for 40 years. Still, it has a
role to play, albeit one that would require uncharacteristic
humility.
3.

The Sentencing Commission—there is a lot of
work to be done

The Sentencing Commission, by its organic statutory creation,
was mandated by Congress to formulate the Guidelines “to minimize the likelihood that the Federal prison population will not
exceed the capacity of the Federal prisons, as determined by the
Commission.”168 We know of no evidence that the Sentencing
Commission has ever followed this mandate. Data from the
DOJ and the BOP indicates that the BOP has operated at overcapacity at least since 1981.169 At least since 1999, the BOP has
been at overcapacity by more than 30% in each subsequent year
and by fiscal year 2012 was at 38% overcapacity.170 In some categories of BOP facilities, the overcapacity rates reached as high
as 62% in 2004.171 Tellingly, “while the number of state inmates
have decreased, the federal population has continued to increase.”172 We strongly urge the Sentencing Commission to take
this Congressional mandate more seriously. If they had at the
time of the passage of the original Guidelines and later upward
ratcheting, we would not have the serious overcrowding of fed168
169
170
171
172

28 U.S.C. § 944(g) (2012).
JAMES supra note 132, at 21, Figure 10.
Id. at 22, Table 2.
Id.
Id. at 2.

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eral prisons that we now have—even with the massive building
of new prisons over the past 30 years.173
Thus, our first recommendation for the Sentencing Commission is that it should direct its staff to prepare mass incarceration
impact statements (MIIS) to determine the effect of adopting
each proposed new Guideline or any proposed modifications to
existing Guidelines before they are posted for public comment.
The MIIS’s should also be made public.
The testimony by James T. Skuthan, Chief Assistant Federal
Public Defender for the Middle District of Florida, before the
United States Sentencing Commission, Public Hearing on Proposed Drug Amendments, March 17, 2011, suggested numerous
specific ways the drug guidelines could be changed to reduce
cost and the length of sentences. Examples included detailed
recommendations to lessen the severity of the Drug Quantity
Table; expansion of the safety-valve and other downward adjustments for non-violent, low-level drug offenders lacking aggravating adjustments; and expanding mitigating role adjustments
(here the public defender community through Mr. Skuthan, recommended nine very specific fixes to Guideline 3B.1.2.).
This raises two suggestions for reform. First, adopt the
thoughtful suggestions of Mr. Skuthan, a superb spokesperson
for the defense community. It appears that some of his suggestions are reflected in the Proposed Amendments to the Sentencing Guidelines published for public comment on January 17,
2014.174 This reinforces the need for an ex officio member for
the Sentencing Commission from the defense community. If the
Sentencing Commission had an ex officio member from the defense community years ago, these critical potential reforms to
the Guidelines might have happened much earlier. On April 10,
2014, the Commission unanimously voted to adopt the so called
“All Drugs Minus Two” amendments to the Drug Quantity TaId. at 34.
Sentencing Guidelines for United States Courts, 79 Fed. Reg. 3280-01 to
3289-94 (Jan. 17, 2014).
173
174

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bles, in Guidelines § 2D1.1 (manufacturing importing, exporting, or trafficking) and §2D1.11 (distributing, importing,
exporting, or possessing a listed chemical). This amendment
lowers the base offense levels by two for various quantities of
drug offenses.175 “The Commission estimates that approximately
70 percent of federal drug trafficking defendants would qualify
for the change, with their sentences decreasing as average of 11
months . . .”176 Judge Patti B. Saris, chair of the Commission
noted in the press release that his was only a “modest reduction” towards “reducing the problem of prison overcrowding at
the federal level . . .”177
Mr. Skuthan’s suggestions on fixing, specifically, the Mitigating Role Guideline, which was not adopted by the Commission,
demonstrate an important teaching for reducing mass incarceration in federal prisons. Fine tuning of existing Guidelines can
significantly impact mass incarceration in the federal system as
opposed to radical proposals like eliminating the Guidelines altogether or legalizing certain drugs. This requires the Sentencing
Commission to take the lead in examining existing Guidelines
with a critical eye to find new ways within the existing structure
to reduce mass incarceration.
News Release, U.S. Sentencing Comm’n, U.S. Sentencing Commission
Votes to Reduce Drug Trafficking Sentences: Commission Sends Amendments to Congress Including Provisions to Implement the Violence Against
Women Reauthorization Act (Apr. 10, 2014), available at http://www.ussc.
gov/sites/default/files/pdf/news/press-releases-and-news-advisories/press-releases/20140410_Press_Release.pdf; U.S. Sentencing Comm’n, Amendments
to the Sentencing Guidelines (Preliminary) Amendment 3. Drugs, p. 1
(2014), available at http://www.ussc.gov/sites/default/files/pdf/amendmentprocess/reader-friendly-amendments/20140410_Unofficial_RFP_Amendments.pdf.
176 News Release, U.S. Sentencing Comm’n, U.S. Sentencing Commission
Votes to Reduce Drug Trafficking Sentences: Commission Sends Amendments to Congress Including Provisions to Implement the Violence Against
Women Reauthorization Act (Apr. 10, 2014), available at http://www.ussc
.gov/sites/default/files/pdf/news/press-releases-and-news-advisories/press-re
leases/20140410_Press_Release.pdf.
177 Id.
175

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Next, the Sentencing Commission should do more to encourage on an ongoing basis suggestions from outside experts
like judges, academics, law enforcement and members of the defense community (in addition to the ex officio DOJ commissioner) to reduce mass incarceration. We believe if the
Sentencing Commission solicited the views of the defense community and federal judges on a regular basis, there would be no
shortage of suggestions to amend the Guidelines in an effort to
reduce mass incarceration while still addressing the necessary
public safety and penological concerns
We recommend, as has former U.S. District Court Judge
Nancy Gertner, that the Sentencing Commission should establish a section on their excellent web page where members of the
public, the legal academy, federal judges, the Sentencing Commission, Congress and their staffs could easily access all federal
judicial sentencing opinions either criticizing or expressing some
form of Kimbrough type policy disagreement with the Guidelines.178 This would promote greater transparency and a new
perception that the Sentencing Commission is more interested
in just and fair sentencing rather than perpetuating its own existence and its self-promotion of the very Guidelines it promulgates. Finally, the Sentencing Commission needs to put a
massive hydraulic brake on “doing what is has been doing since
Douglas A. Berman, Advice for the US Sentencing Commission from Former USDJ Nancy Gertner, SENTENCING LAW & POLICY (Sept. 30, 201), available at http://sentencing.typepad.com/sentencing_law_and_policy/2013/09/
advice-for-the-us-sentencing-commission-from-former-usdj-nancy-gertner.
html (“If the Commission is interested in minimizing disparity in sentencing
in a post-Booker world (which should be one of its goals — hardly the only
one), what better way than to make certain that the opinions of district court
judges are communicated more broadly to the federal bench?”); Id. (“To
look at the Commission web site, there is only one orthodoxy — the Guidelines and Appellate Court decisions that rarely say much of anything. In fact,
the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity — the
uniform enforcement of its flawed product, the U.S. Sentencing
Guidelines.”).
178

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Congress created it: attempting to make it as difficult as possible
for judges to impose sentences below those called for by the
guidelines.”179
4.

Federal judges—there is no algorithm for human judgment

We encourage federal district court judges to think more
deeply about doing greater Kimbrough justice — that is, take a
harder look at whether specific Guidelines, perhaps because
they are not based on empirical data, national experience “or
the Commission’s exercise of its characteristic institutional
role”180 should be subject to a judge’s policy disagreement —
even, as Kimbrough finds, “in a mine-rune case.”181 The rationale for greater Kimbrough justice is reflected in a quote from
U.S. District Court Judge Bruce Jenkins:
We forget that the computer is just a tool. It is supposed to help — not substitute for thought. It is
completely indifferent to compassion. It has no
moral sense. It has no sense of fairness. It can add
up figures, but can’t evaluate the assumptions for
which the figures stand. Its judgment is no judgment at all.182
Precisely because the Guidelines cannot replace judicial judgment because there is no algorithm for it, federal judges should
encourage each other to critically examine the foundation for
the Guidelines under which they sentence. The simple truth is
the “problem is that few guidelines can be shown to be based on
actual preguideline sentencing practice or on Commission research and expertise.”183 It is through this practice of federal disAdelman, supra note 76, at 298.
Kimbrough v. United States, 552 U.S. 85, 109 (2007).
181 Id. at 110.
182 Bruce S. Jenkins, The Legal Mind in the Digital Age, THE FEDERAL LAWYER 28, 31 (2011) available at http://www.fedbar.org/Federal-Lawyer-Magazine/2011/February/The-Legal-Mind-in-the-Digital-Age.aspx?FT=.pdf.
183 Adelman & Jon Deitrich, supra note 91, at 578.
179
180

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trict court judges critically examining the Guidelines that the
Guidelines will actually improve and deliver greater justice.
“Only if district courts engage in this enterprise will federal sentencing practices improve.”184 This is exactly what Booker
envisioned.185
The SRA and its transfer of power from judges to the Sentencing Commission and to the DOJ has seriously eroded the
role of moral judgment in federal sentencing. Some of that discretion and moral judgment has been restored in the postBooker world. But sentencing requires the consideration of
much more than where the offense characteristics and the criminal history appear on the intersection of a 258-box sentencing
grid. Federal sentencing requires a keen sensitivity to often
unique and infinite questions raised by the vagaries of real life –
often lives and offenses that the sentencing Guidelines “grid and
bear” it approach are incapable of capturing. Offenders are
much more than just the typed description of them contained on
the pages of presentence reports. They are multi-dimensional
human beings each with their own distinctive and unique past.
Judges, not standardized Guidelines, are in the best position to
weigh all of the circumstances surrounding the nature of the offense, the history and characteristics of the offender and the
other statutory sentencing factors and impose a dispassionate,
moral judgment in the form of the appropriate sentence. The
libertarian Cato Institute has publically recognized this at least
2002.186 “Only a trial court . . . guided by experience, and dispassionate in decisionmaking – can morally judge a convicted crimiId. at 581 (footnote omitted).
Id. at 581 n.40 (noting that in United States v. Booker, 543 U.S. 220, 264
(2005) the Court observed: “As we have said the Sentencing Commission
remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the
Guidelines accordingly.”).
186 ERIK LUNA, CATO INSTITUTE, MISGUIDED GUIDELINES: A CRITIQUE OF
FEDERAL SENTENCING (2002), available at http://object.cato.org/sites/cato.
org/files/pubs/pdf/pa458.pdf.
184
185

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nal. The personal assessment of facts and circumstance, along
with the interaction between judge and defendant, provides the
basis for a court’s imposition of moral judgment in the form of a
sentence.”187 No sentencing guideline can determine a sentence
with what Judge Guido Calabresi has so wisely observed as a
“sense of balance, which allows one to weigh that which cannot
be measured.”188 The Guidelines are simply incapable of weighing that which cannot be measured. We encourage federal
judges to do more Calabresi weighing.189
Finally, we encourage federal judges to visit BOP facilities to
meet with inmates they have sentenced. Most federal judges
have visited just one federal prison. This occurs during their initial orientation in their first year on the bench in “baby judges”
school sponsored by the Federal Judicial Center, the training
arm of the federal courts. Most sitting federal judges have never
met with inmates they have sentenced. We believe doing so will
improve judges’ thinking about the length of sentences most defendants need, especially low-level, non-violent drug addicts. We
believe it will also provide judges with important new insights
into each of the statutory factors of sentencing.
Judge Bennett has visited hundreds of inmates he has personally sentenced.190 After doing so and having intensive group and
one-one one discussions with most of these inmates, Judge Bennett has observed many who are working very hard in selfimprovement educational, vocational, psychological including
addiction and life skills programs. Most, low-level, non-violent
drug addicts, after three to five years in federal prisons, have
Id. at 11.
Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham,
Jr., 142 U. PA. L. REV. 513 (1993).
189 For an excellent overview of some of the reasons why federal judges
seem reluctant to vary from the Guidelines, see Nancy Gertner, From Omnipotence to Impotence: American Judges and Sentencing, 4 OHIO ST. J.
CRIM. L. 523 (2007).
190 Mark W. Bennett, Hard Time: Reflections on Visiting Federal Inmates, 94
JUDICATURE 304 (2011).
187
188

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received the maximum benefit of incarceration and are simply
being warehoused. Among the problems with the current federal sentencing regime, especially in low level, non-violent drug
addict cases, is that the length of the sentences driven by
mandatory minimums and the harshness of the drug Guidelines
deprive far too many of hope. Without hope they have little incentive to better themselves.
VIII.

CONCLUSION

If there is an arc to history, we are perched upon it at a cresting point as the gravity of reason pulls us toward justice. It has
been a long and painful trip for our nation, with prisons filled,
families divided and destroyed, urban communities devastated,
narcotics proliferated and all of these tragedies abetted by the
inaction of those with the power to change things—Congress,
the DOJ, the Sentencing Commission, and federal judges.
That inaction, however, seems to have ended. This last year
has seen conscience move judges to reject harsh sentences and
speak more publicly about what they see, the Sentencing Commission consider backing down from the too-strict measures of
the narcotics guidelines, Congress ponder major and retroactive
changes and even the DOJ, the most intractable of all, become a
powerful force for change.
For reformers, there is a bit of irony and a lot of joy in the fact
that the boldest call for reform has come not from an academic
or an activist, but from the Attorney General himself. In his August 12, 2013, speech to the American Bar Association, he made
no secret of the fact that a realignment of policy is in the process, one that is aimed squarely at the problem of overincarceration:
It’s time — in fact, it’s well past time — to address
. . . unwarranted disparities by considering a fundamentally new approach . . . we must face the reality that, as it stands, our system is in too many
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respects broken. The course we are on is far from
sustainable. And it is our time — and our duty —
to identify those areas we can improve in order
to better advance the cause of justice for all
Americans.
As the so-called “war on drugs” enters its fifth
decade, we need . . . to usher in a new approach.
And with an outsized, unnecessarily large prison
population, we need to ensure that incarceration is
used to punish, deter, and rehabilitate — not
merely to warehouse and forget.
Today, a vicious cycle of poverty, criminality, and
incarceration traps too many Americans and
weakens too many communities. And many aspects of our criminal justice system may actually
exacerbate these problems, rather than alleviate
them.
It’s clear — as we come together today — that too
many Americans go to too many prisons for far
too long, and for no good law enforcement reason
...
The bottom line is that, while the aggressive enforcement of federal criminal statutes remains
necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation.
Today — together — we must declare that we will
no longer settle for such an unjust and unsustainable status quo . . . And we must resolve — as a
people — to take a firm stand . . . for justice.
This is our chance — to bring America’s criminal
justice system in line with our most sacred values.
This is our opportunity — to define this time, our
time, as one of progress and innovation.

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This is our promise — to forge a more just
society.191

When it is the leader of the nation’s federal prosecutors who
makes the most eloquent statement towards justice and proportionality, we are living in interesting and very hopeful times.192
Left to be seen, of course, is whether or not this vision will become a reality. For that to happen, there are many of us — on
the bench, in the academy, in Congress and within the bar —
who must accept responsibility for the mess we have made and
humbly move forward to a better solution. As Martin Luther
King, Jr., so often reminded us, “The arc of the moral universe is
long, but it bends toward justice.”193 However, as the history of
the rise of mass incarceration in America has taught us — the
arc does not bend on its own.

191 See Eric Holder, U.S. Attorney General, Address at the Annual Meeting
of the American Bar Association’s House of Delegates (Aug. 12, 2013), http:/
/www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html; see also,
Eagle v. United States, 742F.3d 1079, 2014 WL 563572, at *4 n.2 (8th Cir.
2014) (Noting that in the same speech, Attorney General Holder noted the
need to “ ‘fundamentally rethink the notion of mandatory minimum
sentences for drug-related crimes,’ as these sentences ‘oftentimes generate
unfairly long sentences’ and, as a result, ‘breed disrespect for the system.’ ”).
192 In his first speech as U.S. Attorney General, on January 21, 1961, Robert
F. Kennedy spoke: “All of us might wish at times that we lived in a more
tranquil world, but we don’t. And if our times are difficult and perplexing, so
are they challenging and filled with opportunity.” See Department of Justice,
Honoring Attorney General Robert F. Kennedy, U.S. DEP’T OF JUSTICE, THE
JUSTICE BLOG (Jan. 21, 2011), http://blogs.justice.gov/main/archives/1149. We
are optimistic that Attorneys General Holder’s and Kennedy’s words vivify
the movement to reform mass incarceration in America.
193 See TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING
YEARS, 1954-63, 197 (1988) (“[O]ne of King’s favorite lines, from the abolitionist preacher Theodore Parker, [was] ‘The arc of the moral universe is
long, but it bends toward justice.’ ”).

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