Vol. 36, Number 7—July 2004

Commission Recommends Changes in Sentencing and Incarceration

An American Bar Association Commission has called for repeal of mandatory minimum sentences, stating that "there is no need for mandatory minimum sentences in a guided sentencing system."

After nearly a year-long review, the ABA Justice Kennedy Commission, chaired by Stephen A. Saltzburg, the Wallace and Beverley Woodbury Professor at the George Washington University Law School, has issued its report on sentencing and incarceration. The Commission was asked to re-examine some of the most fundamental issues that arise in criminal justice debates, including what the purpose of punishment is, how much punishment is necessary, and what factors should mitigate or enhance punishment.

"The unsurprising conclusion that we reached," the Commission reported, "is that we cannot answer many of these questions, for they do not permit a single, correct answer. Reasonable people can and do differ on the answers. . . . In the end, we offer no grand conclusions or pronouncements on the criminal justice issues that have been debated by scholars, judges, and lawyers for many years." 

Despite its general disclaimer, the Commission made a number of recommendations based on some of the common issues facing state and federal criminal justice systems:  punishment, sentencing and incarceration; racial disparity in the criminal justice system; clemency, sentence reduction, and restoration of rights; and prison conditions and prisoner re-entry.

The Commission recognized that lengthy sentences generally are warranted for offenders who commit the most serious criminal acts. The sentences not only incapacitate the offender and safeguard the community, they send a deterrent signal. The Commission acknowledged, however, the growing consensus that incarceration is not the only punishment option that should be available in a comprehensive sentencing system. "Alternatives to incarceration should be provided when offenders pose minimal risk to the community and appear likely to benefit from rehabilitation efforts," the report stated.

Among the Commission's recommendations was the repeal of mandatory minimum sentences, since, as the report observed, "there is no need for mandatory minimum sentences in a guided sentencing system.

Courts should be allowed to consider the unique characteristics of offenses and offenders that may warrant an increase or decrease in a sentence. "As long as judges explain an increase or decrease in an otherwise applicable sentence and there is review of such decisions, the right balance between avoiding unwarranted disparities while recognizing individual characteristics of offenses and offenders can be maintained, and judges can be held accountable for their decisions," the Commission concluded.

The Commission also favored giving greater authority and resources to an agency responsible for monitoring the sentencing system; adopting risk-based criteria as a basis for determining whether an offender should be released to community custody, parole or probation; and considering diversion programs for less serious offenses, including studying the cost effectiveness of treatment programs for substance abuse and mental illness.

The Commission urged Congress "to give greater latitude to the U.S. Sentencing Commission and the federal courts in exercising authority related to criminal sentencing and to reinstate a more deferential standard of appellate review of sentences."

A separate resolution on the issues of sentencing and clemency urged, among other recommendations, the expansion of the use of the federal statute permitting reduction of sentences for "extraordinary and compelling reasons," with guidance for courts that should be developed by the U.S. Sentencing Commission.

These recommendations, which do not reflect ABA policy, will be considered by the ABA House of Delegates for adoption as policy at its Annual Meeting in Atlanta, August 9 and 10.

ABA President Dennis W. Archer formed the Commission, composed of federal and state judges, prosecutors, and private attorneys, in 2003. The impetus for its formation was a speech by Justice Anthony M. Kennedy in which he addressed the current state of prisons and corrections. The report's recommendations, are available on-line at http://w3.abanet.org/home.cfm.