Concerns about crowded prisons and Pepper in DOJ annual letter to US Sentencing Commission
A very kind reader sent me a copy of the letter sent by the Justice Department’s Criminal Division to the US Sentencing Commission commenting on the operation of the federal sentencing guidelines and other matters. This eight-page letter has a number of interesting facets, but these two passages struck me as especially blog-worthy:
Prisons are essential for public safety. But maximizing public safety can be achieved without maximizing prison spending. A proper balance of outlays must be found that allows, on the one hand, for suffcient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentcncing policy that achieves public safety correctional goals and justice for victims, the community, and the offender. The Department of Justice has been under a general hiring freeze for some time, which means that vacant executive positons of all kinds — including investigators, prosecutors, forensic analysts, and more — cannot be filled. At the same time, the federal prison population – and therefore prison expenditures – have been increasing. In fact, the federal correctional population has jumped by more than 7,000 prisoners this fiscal year, the equivalent of about four prisons worth of inmates.
This is all relevant to federal sentencing, because prison spending to support these population increases has been rising for years and the prison population remains on an upward trajectory. Given the budgetary environment, that trajectory wil lead to a fuiiher imbalance in the deployment of justice resources. While this is a long term problem that requires a long term and systemic solution, there are also immediate concerns. As former Bureau of Prisons Director Harley Lappin testified before the Commission in March, the Bureau of Prisons is currently operating at 35% over rated capacity…. Even more troubling, former Director Lappin testified that the Bureau of Prisons estimates that its inmate population wil continue to grow by about 5,000 prisoners a year for the foreseeable future….
While we firmly believe that imnate rehabilitation and improving the rate of successful prisoner reentry are critical obligations for any correctional system, the Tapia court made clear that the prohibition on selecting a term of imprisomnent based on rehabilitative considerations — a prohibition put in place as part of the overall vision and strcture of sentencing under the SRA that discounts offender characteiistics — must remain a hallmark of federal sentencing post-Booker. At the same time, however, in Pepper, decided earlier in the term, the Court endorsed the notion that post-Booker sentencing must focus as much on the offender, his individual background, and his need for services and rehabilitation as on the offense committed…. This and other post-Booker jurisprudence now place an offender’s personal history — including socio-economic status, educational achievement and family and community ties — on equal footing as sentencing factors with the offense committed.
We believe these two lines of thought and doctrine — one that insists that the length of federal imprisomnent terms be based primarily on the offense and criminal history, and one that insists that offender characteristics and rehabilitation be co-equal determinants of all aspects of sentencing — conflict with one another and must be reconciled in order to create a coherent, national system. We believe the post-Booker sentencing regime, which gives sentencing court’s an unbounded menu of sentencing principles from which to devise the ultmate sentence, wil continue to lead, if not reformed, to unwarranted disparities in sentencing outcomes. Together with the Commission’s study exposing an increase in unwarranted racial and ethnic disparities in post-Booker federal sentencing practice, we have real concerns that current policy is not meeting the long terms goals of the federal criminal justice system, including the goals of fostering trust and confidence in the criminal justice system and eliminating unwarranted disparities in sentencing.