Sentencing Guidelines

  • September 13, 2017
    Guest Post

    by Bidish Sarma

    *Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    The panoply of laws that govern the lives of individuals convicted of sex crimes after they have served their sentences is overwhelming. As this web of civil regulation has “grown into a byzantine code governing in minute details” how these people must live day-to-day, questions about these laws’ legitimacy and constitutionality are being litigated around the country. Several courts have struck down onerous and overbroad registration requirements that apply to offenders living in the community. Yet, questions persist, particularly where the government actually deprives individuals of their physical liberty. Civil commitment schemes specifically designed for sex offenders have been in vogue for more than two decades now. The U.S. Supreme Court approved some of these schemes as they took root, but it insisted that courts could bring constitutional scrutiny to bear if it turned out these schemes were punitive. The real test of that promise has now arrived.

  • June 2, 2017
    Guest Post

    by Stephen Rushin, Assistant Professor of Law, University of Alabama School of Law

    While many have welcomed the increased national interest in police accountability, critics, including President Donald Trump and police unions, have warned of a so-called “war on cops.”  To their credit, there is evidence that ambush killings of police officers increased in 2016, as did the number of total police officers killed in fatal shootings. But it is difficult to know whether these numbers are part of a larger pattern, or merely a statistical aberration.

    Sen. John Cornyn (R-Texas) and Rep. Ted Poe (R-Texas) do not want to take any chances. In the “Back the Blue Act,” the two legislators (along with several co-sponsors) propose several alterations to federal law meant to protect police officers. Ultimately, though, there is serious reason to doubt whether this measure would make local law enforcement substantially safer. And it is a virtual certainty that, if passed, this law would severely hamper efforts to hold police officers accountable for wrongdoing.

    The measure would create new federal crimes for the assaulting or killing of federally funded law enforcement officers. It would limit habeas relief for some cases involving the killing of a police officer. And it would expand the federal death penalty to cases involving the killing of police officers. There is a lot to say about this bill—much of which has already been covered in depth by other media outlets or advocacy organizations.

  • December 7, 2015
    Guest Post

    by David Steingraber, Senior Policy Adviser at the National Criminal Justice Association, former Executive Director of the Wisconsin Office of Justice Assistance, former Administrator of the Wisconsin Department of Justice, Division of Law Enforcement Services, and former Chief of the Menomonee Falls, Wis. and Middleton, Wis. Police Departments   

    The “perfect storm” has come to mean the convergence of two or more forces to create a larger force which is greater than the sum of its parts. Such is the case with criminal justice reform. The politics of criminal justice reform has always been an impediment to true reform. The forces of law and order have always collided with well-meaning “do-gooders” to cancel any real momentum for reform. Dramatic headline grabbing crimes and a statistical increase in crime rates have prompted knee-jerk get tough on crime responses at both local precincts and state houses across the country.

    What has changed today is that our criminal justice system has come under scrutiny from both the left and the right. Not only have the deplorable conditions in many of our prisons with overcrowding being a major contributing factor been cause for concern, but concern has also been prompted by the extremely high cost of maintaining prisons to say nothing of the cost of new prison construction anticipated to house a growing number of inmates.

    Progressive and social reformers continue to rail against the ineffectiveness and inhumanity of our over-reliance on incarceration. Conservatives have awakened to the impact of the high cost of the prison system. This impact is particularly harsh at the state level which is the primary locus of our criminal justice system. There is also concern at the federal level where the federal justice system has intervened to attempt to quash the national drug abuse epidemic.

    For the first time in memory, these two forces are willing to sit down and discuss a pathway to criminal justice reform that is less reliant on what is now seen as a costly and often ineffective response to crime. The reward for both sides is compelling. Each side sees the clear benefit of spending less on prisons and achieving a more effective response to criminal behavior.

  • October 14, 2015
    Guest Post

    by Sheila Bedi, Clinical Associate Professor of Law, Northwestern University School of Law; attorney, Roderick and Solange MacArthur Justice Center, Northwestern University School of Law’s Bluhm Legal Clinic

    Prisons and jails are a revolving door of brutality where people held behind bars experience horrific abuse funded by taxpayers and meted out at the hands of the state. My practice is dedicated almost exclusively toworking with and for men, women and children who live behind bars, and most of the cases I’ve filed have to do with prison and jail conditions.

    The facts of some of my cases speak for themselves. A juvenile prison in Mississippi was notorious for subjecting the young women there to sexual abuse, and in the wake of a particularly horrific incident during which correctional officers sexually abused girls who were then left shackled together for over a month, the prison was permanently closed. In downstate Illinois, a young man whose only offense was a first-time drug possession endured over 12 hours of brutal rape. He joined the over 200,000 people who survive sexual abuse in our nation’s prisons. Another case involved a private prison company that raked in over $100 million in profits while subjecting men to abusive conditions. There, some prison staff exploited the youth by selling drugs inside the facility, and youths who were handcuffed and defenseless were kicked, punched and beaten. Other youths were stripped naked and held in isolation for weeks at a time. Young men with serious health needs languished without medical care, sometimes risking death or permanent injury. A federal court found that these conditions resulted in “a cesspool of unconstitutional and inhuman acts . . . The sum of these actions and inactions . . . paints a picture of such horror as should be unrealized anywhere in the civilized world.”

    My work is about transforming—and hopefully dismantling—the criminal injustice system and enforcing the constitutional rights of people who live in the shadows. The challenge is to help the courts understand and reckon with the humanity of the 2.2 million men, women and children this country holds behinds bars. One of the ways that happens is when lawyers recognize the agency, courage and resilience of their clients. I am humbled and often awestruck by the courage of my clients, and the fact that they are willing to trust me with the truth of what they endure behind bars is an incredible privilege. Most of my cases are class actions seeking only injunctive relief. That means my clients aren’t getting any money from being involved in this work and instead put themselves at great risk of retaliation by speaking up and telling their stories to the court, all to ensure that others are protected from the abuses they endure.

  • July 14, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst, Open Society Foundations, Washington Office

    *This post originally appeared on Open Society Voices

    President Obama changed 46 lives on Monday, commuting the prison terms of individuals who had been locked away serving long sentences for low-level, nonviolent offenses. “These men and women were not hardened criminals. But the overwhelming majority of them had been sentenced to at least 20 years—14 of them had been sentenced to life—for nonviolent drug offenses,” the president said in making the announcement. “Their punishments didn’t fit the crime. And if they’d been sentenced under today’s laws, nearly all of them would have already served their time.”

    I enthusiastically applaud the president’s announcement, as I did with his two prior batches of releases. For more than 20 years now, I have been pushing, along with many other champions of criminal justice change, for reform of the egregiously lengthy sentences for crack cocaine offenses—sentences which were unjust, inconsistently applied, and racially discriminatory.

    I was aware of the use of the executive clemency power to close painful chapters in history, which presidents of both parties have courageously used. John F. Kennedy quietly issued commutations to people given mandatory minimum sentences under the 1956 Narcotics Control Act, widely seen as unnecessarily harsh during his administration. Gerald Ford used his authority to create an executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War, 90 percent of which were granted.

    President Obama’s commutations this week allow dozens more worthy candidates, many of whom thought they would never again see the light of day, the opportunity to have a second chance. This is phenomenal. But we as a country need to go further, and release the broadest spectrum of prisoners possible without compromising public safety.