DOJ Must Take Lead on Prison Overcrowding
By Mary Price | March 19, 2013 2:32 pm

It is time for the Department of Justice to show some sentencing vision.

Sentencing and prison overcrowding were front and center inside the Beltway last week. Charles Samuels, the director of the Federal Bureau of Prisons and representatives from the Department of Justice testified before the U.S. Sentencing Commission on March 13. The following day, DOJ Inspector General Michael Horowitz, testified at a House oversight hearing on Capitol Hill.

They delivered sobering news. The director of the BOP — who has repeatedly raised alarms about the dangers of prison overcrowding — bluntly told the commission, which writes federal sentencing guidelines, that we must slow down the numbers of people entering prison. He sees no end in sight to overcrowding that today tops 37 percent.

Meanwhile in Congress, the IG identified prison overcrowding as the DOJ’s only “material weakness” and cited a prison population outlook that “is bleak: the BOP projects system-wide crowding to exceed 45 percent over rated capacity through 2018.”

The IG noted that the federal prison system every year gobbles up a larger and larger share of the Justice Department’s money. It now dwarfs all other units, occupying more than 26 percent of the 2013 budget request.

In the understatement of the week, IG Horowitz drew a picture for Congress about one cause of the relentless rise in the prison population and its consumption of the DOJ budget: “Not surprisingly, these trends mirror the increased numbers of federal defendants sentenced each year, which rose from approximately 60,000 in FY 2001 to more than 86,000 in FY 2011, according to the Sentencing Commission.”

He could have added that, as the U.S. Sentencing Commission pointed out in 2011, population pressures are also fed by the lengthening of prison sentences, especially mandatory minimum sentences.

Telling the Committee that the Department cannot build its way out of the problem without making deeper painful cuts in other areas, including law enforcement and prosecution, Horowitz urged “[t]he Department must … have in place an innovative and transparent strategic vision for how to fulfill its mission in the long term without requiring additional resources.”

Whatever strategic vision, if any, the DOJ has, was not on display when the department made its views on how long sentences should be to the Sentencing Commission on March 13. Rather than temper the request in light of the stark choices they face, the DOJ trudged down its well-worn business-as-usual path of seeking longer sentences.

In some cases, it endorsed sentencing enhancements the commission proposed, in others it rejected them in favor of higher enhancements, or proposed entirely new enhancements the commission had not come up with on its own. And, in nearly every case where the commission provided alternatives — one that would result in lower sentences and one that would result in longer sentences — the DOJ chose the harsher penalty recommendations, higher base sentences or more onerous enhancements. Sometimes they asked that enhancements be applied cumulatively.

My rough count of DOJ’s recommendations that would result in higher guideline sentences exceeded 12. This does not include a DOJ request for instructions in one guideline for three new aggravating factors they would require judges be directed to consider that would call for a sentence longer than the guideline provides. Nor does it include the DOJ’s urging that prosecutors not be required to move for a reduction of sentences in certain cases provided by Congress!

In no case in the DOJ’s submission did it seek guideline changes that would lower sentences or otherwise suggest that sentences be ameliorated. Other witnesses at the hearing were quick to characterized the increases proposed by the commission and/or sought by the department as – variously — premature, unsupported by evidence, unnecessary, redundant, overbroad or liable to result in disproportionate sentences. You can read the written submissions of all the witnesses here.

These calls for longer sentences are troubling in light of recent indications that the department was ending its long love affair with ever-lengthening prison terms. The DOJ embraced lower sentences for crack cocaine defendants in the Fair Sentencing act of 2010, sought increased good time and earned early release for federal prisoners in the Second Chance
Reauthorization Act that failed last Congress, and endorsed modest diversion measures for substance abusers in the federal sentencing guidelines in 2010.

It is beyond disappointing that the Department of Justice cannot formulate a strategic vision about how to use diminishing resources wisely. Or assuming it has one, be able to change tack operationally. We had expected better, in part in light of the DOJ’s recommendation to the Sentencing Commission just a few short months ago.

Our budget outlook demands a more exacting accounting and deployment of federal criminal justice resources, including federal sentencing and corrections resources. The federal prison system is a product of federal sentencing in its size and scope. And as we said in our report to the commission last year, prisons are essential for public safety. But maximizing public safety can be achieved without maximizing prison spending.

In an era of governmental austerity, maximizing public safety can only be achieved by finding a proper balance of outlays that allows, on the one hand, for sufficient numbers of police, investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community and the offender. The federal prison population — and prison expenditures — have been increasing for years. In this period of austerity, these increases are incompatible with a balanced crime policy and are unsustainable.

The DOJ should listen to itself; assess its prosecution and sentencing policies and start now to actively change the course of criminal justice history. It should robustly embrace alternatives to incarceration and avoid seeking longer sentencing guidelines that lead to greater and unsustainable prison growth.

The DOJ is on the front lines, deciding who goes to prison and for how long. It must do more than decry unsustainable growth and instead urge a smarter approach to policies that lead to incarceration. It needs to lead the charge.

Mary Price is the vice president and general counsel for Families Against Mandatory Minimums. The views expressed here are her own.

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