ABA reviews sentencing report

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Federal judges’ discretion shouldn’t be hamstringed by mandatory minimum sentencing laws, or by overly severe, one-size-fits-all sentencing guidelines.

That’s according to the American Bar Association’s House of Delegates. On Aug. 9, at the ABA’s annual meeting in Atlanta, its policy-making body passed several resolutions regarding sentencing in the federal system, including repealing mandatory sentencing laws, and employing “guided discretion” sentencing systems, “to avoid unwarranted and inequitable disparities in sentencing among like offenses and offenders, but permit courts to consider unique characteristics of offenses and offenders that may warrant an increase or decrease in a sentence.”

The resolutions originated from ABA’s Justice Kennedy Commission. That commission took its name from the 2003 keynote address at the ABA annual meeting given by U.S. Supreme Court Justice Anthony M. Kennedy. At that time, Kennedy expressed concerns regarding the sheer volume of persons incarcerated in the U.S. as compared to other nations, as well as the disproportionate numbers of minority prisoners. He additionally called for the abolition of federal mandatory minimum sentences, and for downward revisions to the Federal Sentencing Guidelines.

The speech was “an electrifying moment,” said Justice Kennedy Commis-sion Chair Stephen A. Saltzburg, a professor at George Washington University Law School in Washington, D.C.

The Justice’s remarks reminded lawyers of the fact that just because something is constitutional, doesn’t mean it is right. Saltzburg said, “The fact that the Supreme Court won’t strike it down, doesn’t mean the justices like it. It just means they know that there’s a limit to judicial power.”

He noted that, as testament to the strength of Kennedy’s beliefs in this area, he allowed the ABA commission to take his name. To the best of Saltzburg’s knowledge, it’s unprecedented for a high court justice to give his or her name to a project not directly related to the Supreme Court.

Kennedy had asked the association to study and take a stand on the issues, and a year later, the commission reached similar conclusions — without the participation of anyone from the U.S. Department of Justice. The commission repeatedly attempted to get DOJ input, to no avail, said Saltzburg.

Robert McCallum, Associate Attorney General of the Department of Justice, told the delegates that the DOJ “strongly opposes” the Kennedy Commission’s recommendations. He said, “In effect, their report proposes a return to the less consistent and less predictable sentencing policies of the Sixties, Seventies and Eighties, which produced sky-high crime rates. …

“Although Professor Saltzburg’s report states that it is not even clear that the increased use of incarceration has enhanced public safety, the undisputed data indicates that it has. The United States is enjoying a 30-year low in crime, in all racial, ethnic and economic areas of our society. But in real terms, this means that nearly 27.5 million violent crimes were not committed in the last decade.”

McCallum further argued that tough but fair uniform sentencing is race-neutral, and it is not incompatible with the goal of rehabilitation for whom that is appropriate.

Incarceration and rehabilitation are not an “either/or” proposition, he said, noting that the DOJ actively supports drug courts for nonviolent drug offenders, and in 2001, it created a prisoner re-entry program to support released prisoners’ transition back into society. In addition, earlier this year, President Bush proposed a $300 million prisoner re-entry initiative in his State of the Union Address.

Neil R. Sonnett, a Kennedy Commis-sion member and a delegate hailing from Miami, countered McCallum’s position by questioning the accuracy of the statistics relied upon by the DOJ, and Sonnett cited one of his own. “We’re locking up millions of people. We lock up more people in the United States than any country in the world, and 95 percent of them are going to be released. And they’re moving back to your neighborhoods.”

Sonnett then asked rhetorically, “Don’t you think it’s time that we thought a little more smartly about how to sentence them, so that only the ones who really need to be locked up and to serve long prison terms are locked up? So that we take care of them in prison, and give them a way so that they can re-enter society when they get out, so when they do move back to your neighborhood, they won’t re-enter the world of criminal activity and perhaps endanger your neighborhoods?”

The delegates answered that in the affirmative shortly thereafter, passing the resolution by a voice vote.

The delegates also approved myriad other recommendations from the Kennedy Commission, including:

• A requirement that law enforcement agencies implement policies to combat racial and ethnic profiling;

• The establishment of standards and a process to permit prisoners to request a reduction of their sentences in exceptional circumstances.

• A call for safe and secure correctional facilities, and for more programs geared toward preparing prisoners for release and re-entry into the community.

The next day, the delegates approved a measure from the ABA’s Antitrust Section calling for changes to the proposed revisions to the federal sentencing guidelines from the U.S. Sentencing Commission. Specifically, the resolution objects to the proposed requirement that waiver of the attorney-client privilege and the work product protection by an organization will become a factor determining whether sentence reduction is warranted for cooperation with the government. The resolution additionally takes issue with proposed revisions to the factors a court may consider when determining whether a compliance program is “effective.”

The Antitrust Section submitted its report to the delegates late, which was cause for concern for some delegates who questioned whether the association had had sufficient time to thoroughly consider the section’s resolut
ion. But proponents countered that the proposed revisions weren’t published in the Federal Register until May 19, and that unless the ABA acts with haste, the sentencing guideline revisions will become law on Nov. 1, 2004 sans the ABA’s input to Congress. After close to an hour of debate, the delegates defeated a motion to postpone their vote indefinitely and then approved the resolution.

Delegates’ Reactions

Afterward, Milwaukee delegate Richard J. Podell of Richard Podell & Associates S.C. told Wisconsin Law Journal that he and the entire Wisconsin Delegation supported the Kennedy Commission’s recommendations.

With specific regard to repealing mandatory minimum sentences and giving federal judges guided discretion systems, he stated, “I favored it because it’s a moral imperative that we act smart, instead of just tough, with criminals. Our prisons are overcrowded. We have to do something to improve the situation — otherwise, we’ll just be increasing the criminal class.

“I think all the Kennedy resolutions, which were really initiated by Justice Kennedy himself, are a smart way to attack the issues of crime,” Podell continued, “And I was upset with the Justice Department. They were given the opportunity to participate in the development of these resolutions, but instead came in at the last second to criticize them. Be a part of the solution, not just a part of the problem.”

Additionally expressing strong support for the commission’s work was Susan R. Steingass of the University of Wisconsin Law School. Steingass chairs the Wisconsin Sentencing Commission, and said she’ll be bringing much of the Kennedy Commission’s recommendations back to the state for consideration here.