The Prisoners I Lose Sleep Over

An op-ed in the WSJ, by Michael Ponsor, a senior U.S. district judge in Springfield, Mass.:

The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor. The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans—including federal judges like me—have struggled with for more than two decades.

I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge.. I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases. The U.S. now houses 5% of the world's population and 25% of its prisoners. Either our fellow Americans are far more dangerous than the citizens of any other country, or something is seriously out of whack in the criminal-justice system.

The capricious evolution of federal sentencing law makes the moral implications of this mass incarceration especially appalling. In 1987, all federal sentencing became subject to sentencing guidelines designed to smooth out disparities among sentences of different judges... Then, in 2005, in a series of cases starting with United States v. Booker, the Supreme Court ruled that this lock-step interpretation of the sentencing guidelines was unconstitutional. The "application of the Federal Sentencing Guidelines," the court held in Booker, "violated the Sixth Amendment." To comply with the right to a jury trial in the Bill of Rights, the Supreme Court went on to say, the guidelines had to be deemed no more than advisory.

(snip)

Consider the implications. Right now, scores of men and women remain in prison at huge cost serving excessive sentences that I was compelled to impose, often against my better judgment, under an interpretation of the sentencing guidelines now recognized as unconstitutional. But Booker and its subsequent sister cases were not deemed to have retroactive effect. So there my defendants sit, and there they will continue to sit, serving out prison terms that were imposed in a manner that violated the law.

(snip)

By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive. And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.

(snip)

http://online.wsj.com/news/articles/SB10001424052702304680904579365440971531708

(If you cannot open by clicking, try copy and paste the title onto google)