Mandatory Maximums? Marc Mauer recommends 20-yr cap on federal sentencing

Sentences in the U.S. are out of control. This would be easier to ignore if the U.S. was the only country in the world but, thank goodness, it isn’t. So chew on this for a second: the U.S. is one of the only industrialized nations in the world that still uses the death penalty (we have more than 3,000 people on death row right now, and a shortage of lethal injection drugs have compelled states to consider bringing back the electric chair and firing squads).

Marc Mauer of the Sentencing Project

On top of our relatively unique approach to the death penalty, we also play fast and loose with life sentences, life without parole, and exorbitantly long sentences for relatively minor offenses (drug offenses in particular) in the U.S. In his recent testimony to the Charles Colson Taskforce on Federal Corrections, Marc Mauer of the Sentencing Project drove this point home as he argued for capping sentences at 20 years except in “extraordinary circumstances.”

The nation’s use of life sentences has expanded exponentially in recent decades, with nearly 160,000 people sentenced to life in prison, or one of every nine people in prison. Of this group, almost 50,000 are serving life without parole sentences. Such whole-life sentences are exceedingly rare in other countries. For example, in the United Kingdom, only 49 individuals are serving life sentences with no opportunity for release.

Although Congress and the federal sentencing commission have made efforts to rein in some of the most outrageous sentences, sentences remain long, and often lack logical proportionality (you can see what you think by playing around with the federal sentencing calculator, here). The most famous example of this is the sentencing disparity between crack and cocaine. The Anti-Drug Abuse Act of 1986 established a 100 to 1 disparity in terms of sentencing by volume of drug, despite the fact that (as the government learned shortly thereafter) the two substances are pharmacologically identical. Think about 100:1 – that’s the difference between six months and fifty years. And guess who got those longer sentences? Under this regime, Black, nonviolent offenders received sentences roughly as long as those received by white, violent offenders.

Screen Shot 2015-03-19 at 10.45.05 AMIn 2010, Congress finally passed the “Fair Sentencing Act of 2010.” With 34 years to perfect the damn thing, “fair” should’ve been an appropriate description, but unfortunately they retained an 18:1 disparity – this time fully informed by government experts that the drugs vary only in price and (largely because of price) in the demographics selling and buying them. Ugh.

In addition to comparing similar offenses, or looking to international standards, it’s also illustrative to look at sentences over time. Mauer points out in his testimony that sentences for murder more than doubled in the ’80’s and 90’s. The dramatic increase in sentences for murder is relevant to the sentencing regime overall, because (although we’ve made a mockery of it in terms of absolute scale) we do sentence proportionately. In other words, we look to the worst crimes and subtract from there for lower offenses – assault below murder, sexual assault below rape, robbery below armed robbery. When you routinely sentence murderers to life without parole, or the death penalty, you make it possible – even “reasonable” – to sentence lower level offenders to decades behind bars. On the other hand, if murderers receive fifteen or twenty years, then manslaughter must be lower, assault below that, etc.

Mauer’s proposal to cap sentences at 20 years barring significant public safety risks is a beautiful inversion of the concept of mandatory minimum sentencing. High sentences, often coming from mandatory minimums, are the single greatest contributor to the sheer size of our incarcerated population. 20 years is a terrible price to pay for any crime, and sentences longer than that have not shown any deterrent effect or effect on the crime rate overall. And in contrast to the debacle of mandatory minimums, this is a vastly better model for racially just reform. Many liberal reformers argued for mandatory minimum sentences to address the disparities in sentencing across races, but the effect was simply that the baseline increased and the disparity was preserved. Mandatory maximums do not present the same risk: though racial disparities will no doubt persist, the effect of maximums will create a ceiling, not a floor.

This is a logical, humane reform that would have massive impact on people who are currently incarcerated, as well as people being sentenced for any level of offense (and their families, and their communities). Implementation would necessitate creative, effective alternative responses to crime. It would strip prosecutors of their most deadly weapons for coercing plea agreements, which would likely empower defendants to take their cases to trial, revitalizing a system of justice that is as rare in reality as it is popular in entertainment (and also putting a huge amount of pressure on courts to discourage unnecessary arrests). Unlike many reforms, a maximum sentence opens the door to further decarceration by humanizing those in the system, motivating the creation of alternatives, and reducing the prison population overall.

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