The Creation of Prisoners: The Hidden Truth About Federal Sentencing Guidelines

judge-cartoon-graphic-280x165There was no need for the federal sentencing guidelines. It is an example of ceding power to bureaucrats by lazy judges who want others to do the work for them even though the work they are trying not to do amounts to little.

The guidelines were designed to bring uniformity to sentencing throughout the United States. The intent was that the poor and rich would be treated alike. Their creators believed like former Secretary of Defense who brought us Vietnam that everything could be reduced to a number. Each crime had a number; each person had a number. You add them up and found justice. The system worked so well that the federal prisons became jam-packed with black inmates who got involved with crack cocaine.

I always felt that if a judge cannot look at the facts before him and the record of the person and come up with an appropriate sentence he should not be a judge. Having been in the system most of my life the good judges were always able to do this. There were some bleeding hearts who would toss marshmallows at defendants who should have been hit with a hammer but even then – giving a break to someone who did not deserve it – did not detract from the overall fairness of the system.

To take care of those judges the state legislatures imposed mandatory minimum sentences for certain crimes. That limited some judges’ discretion but it got out of hand in two ways: the first was more and more crimes were put into that category; and the second was that the prosecutors who made the initial decision on charging or maintaining the charges were afraid to act responsibly in making the charges not only fit the crime but the person who committed the crime. Like the lazy judges the cowardly prosecutors hid behind the numbers.

Sentencing is not difficult. For any capable person with the right experience who puts on robes it is a simple as breathing. It is not a science but making a decision on an act involves an appreciation of its wrongfulness, the effect it had on society, and the character of the person who committed it. There really are only a handful of crimes where mandatory sentences are appropriate one being murder.

The federal sentencing guidelines which turned probation officers into accountants tallying up numbers with the upward and downward departures, and the reward for not going to trial and making people work harder than they want, which is called acceptance of responsibility, have been a wall behind which a failed system has hidden for years.

The federal system is designed to get persons to plead guilty even if they did not commit the crime. The plain and simple fact is it would collapse if everyone claimed his Constitutional right to a trial. What sense does it make to sentence Mr. Nobody to 5 years if he pleads guilty and 20 years if he doesn’t?  The criminal’s so-called “willingness to accept responsibility for the crime” should have no bearing on the sentence. It usually involves the defendant’s calculation of whether he can beat the charges or not.

Would not a just system decide after gathering all the facts about the crime and the criminal that one sentence should apply regardless of whether a plea is extorted?

I recognize that will never happen although it should. Innocent people are forced into admitting to criminal acts so that they not go to prison or are given less time. The confederacy of federal officials, judges, prosecutors, probationer officers, and defense lawyers coveting the favor of those officials gladly grease the system along and suggest they are doing justice. The results suggest otherwise.

In 1985 when the sentencing guidelines were enacted the federal prison population was about 40,000 and the U.S. population was 238 million. There was one federal prisoner for every 6,000 Americans; in 2012 in federal prisoners numbered 212,000 while the total population was 314 million. There was one federal prisoner for every 1,500 Americans. The general population increased 32 percent while the federal prison population increased 430 percent.

In 1985 the overall crime rate was 1 crime for every 19 persons and 1 violent crime for every 179 persons. In 2012 it decreased significantly to 1 crime for every 30 persons and 1 violent crime for every 258 persons. It seems it takes little to understand that while crime is decreasing the federal government is increasingly incarcerating people.

Something is drastically wrong but no one, least of all the judges, want to recognize it. That so many have turned a blind eye to this injustice makes one question the quality of the federal bench. Is it that those judges are so far removed from everyday life that they do not see the injustice enormity that they have created and participate in?

8 thoughts on “The Creation of Prisoners: The Hidden Truth About Federal Sentencing Guidelines

  1. You are right, Matt, the pre-sentencing report is produced by probation officers who are turned into accountants.

    Here’s what’s worse. The report can take anything into account – hearsay, opinions, all sorts of stuff. There is no minimum standard of due process, no evidentiary standard that applies. True, the defense lawyer has input and can point out errors, just as the DOJ has input. Nevertheless, there is absolutely no standard for what goes into it.

    On top of that, in complicated situations, the PO may not even understand the issues and/or the facts.

    Under case law, judges have the right to depart from the sentencing guidelines.

    And judges can and do “disappoint both parties.”


    1. Elmer:

      I often wondered how much input the prosecutors had (under the table) in those reports.

      1. Good question.

        Well, at the very least they have the right to comment, as does the defense, on the preliminary report.

        But what is truly bothersome to me is that there are absolutely no evidentiary standards – literally anything can be used by the prosecutor and/or the PO to go into the sentencing memo. And it seems that case law says it’s OK.

  2. The American Gulag Archipelago is a capitalist enterprise whose profitability is dependent on un-free labor. The Private Prison Companies, CCA, Whachenhut, GEO,lease facilities from the Feds. All run UNICORE operations in their prisons. Inmates work for pennies on the hour producing products that compete with private industry.Since the inmate workers are actually slaves, products can be produced very cheaply, The private sector can’t compete. Unicore generates a great deal of revenue. Its difficult to follow the cash. Who wants to look into prisons. There’s plenty of corruption in the belly of the beast. The Feds fired the private prison companies today. The BOP will no longer lease out its facilities or assign any inmates to the private companies.

  3. Matt:

    You write good columns.

    However, you forgot to mention at least three very important items.

    1. Putting poor and black people in prison guarantees bigger budgets, bonuses, promotions and awards for the Department of Justice. The shameful incentive is clear.

    2. As of 2016, there are more than 10,000 lawyers employed by the Department of Justice, an increase of more than 50% since 1985.

    3. Frame-ups, whether civil or criminal, are a specialty of the DOJ.

    Victor Hugo wrote, “He who opens a school door, closes a prison.”
    Expert Government Witness

  4. Like all Bureaucracies, the Prison System expands:
    “The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories.” Additionally nearly 4 million are on probation and 850,000 on parole.
    2. As Tadzio points out, a correlation exists between increased incarceration rates and decreased crime rates. Is this cause and effect? Some argue jails and prisons create hardened criminals. The recidivism rate is high.
    3. As Matt notes: Something is wrong with punishing someone more severely who professes his innocence, who wont “take responsibility” for a crime he professes he didn’t commit. Something is wrong with rewarding people who are coerced into waiving their right to trial. Of course, trials are so expensive, many folks can’t afford them. Pity the poor innocents who are forced into “plea bargains.”
    4. The system is rigged to favor (1) the wealthy accused (ex. Epstein) and (2) the prosecutors.

  5. All those people who were unjustly incarcerated to fill the bed-space in an over-expanded prison system will get out some day, and, they will be bitter. Owning stock in the misery of others merits a death warrant from the people’s court. We will never forget. We will never forgive.

  6. Your take on the sentencing rigmarole is spot on.

    The following, however, is a numbers game too that makes no sense.
    “In 1985 the overall crime rate was 1 crime for every 19 persons and 1 violent crime for every 179 persons. In 2012 it decreased significantly to 1 crime for every 30 persons and 1 violent crime for every 258 persons. It seems it takes little to understand that while crime is decreasing the federal government is increasingly incarcerating people.” The increased incarceration rate is surely in part responsible for the decreased crime rate. Career criminals are in jail. There are many arguments for keeping fewer people in jail but the salutary effect of having felons in prison is not one of them.

Comments are closed.