Fighting the Incarceration Addiction

Steve Sady, First Assistant at the Oregon Federal Public Defender Office, has again taken a very complicated subject and digested it in an accessible, "user-friendly" manner. Although directed at federal defenders, his ideas, set forth in more detail in this paper, for combatting the Bureau of Prisons' unconscionable efforts to ratchet sentences ever higher and be increasingly stingy with inmates' opportunities to reduce their time are a must-read for every attorney practicing federal criminal defense. Here is the link to the Ninth Circuit Blog, which summarized the report in one page.

Here's how he begins:

"Our society is addicted to over-incarceration. The signs are everywhere: we have the highest rates of incarceration in the world; racial disparities in incarceration rates are a national disgrace; and Justice Kennedy tells us that the prison guard union's lobbying efforts for more incarceration is "sick." Yet more mandatory minimum sentences are proposed every time a politician needs a headline. What's a Federal Defender to do?"

Since the advent of the Guidelines, the Bureau of Prisons has systematically increased the actual time served by abandoning or distorting statutory authorizations for sentence reductions, good time credit, and community corrections. Judges have no way of knowing how the BOP is increasing actual incarceration -- and it's a one-way ratchet -- unless we tell them. The bureaucratic incentives for over-incarceration, at greater tax-payer expense, result in irrational sentences and gratuitous cruelty.

The article provides a number of potential ways to address over-incarceration. The best way is to anticipate problems at sentencing. We can request that judges trump BOP over-incarceration policies by structuring proposed sentences to accomplish what Congress authorized but the BOP won't implement."