With only five percent of the world's population, the United States holds fully 25 percent of the world's prisoners.  Close to two thirds of those in prison are black or Latino.  As of June 30, 2007, 2,299,116 prisoners were held in federal or state prisons or local jails and 1,528,041 were under state or federal jurisdiction.[i]  The Federal Bureau of Prisons imprisoned more than 202,000 people at the end of October 2008.[ii]  In the federal system alone, 75,865 people were sentenced in 2007, the overwhelming majority to terms of incarceration. Of those sentenced, almost 24,000 were sentenced for drug offenses, and two thirds of them received five or ten-year mandatory minimum sentences. 

            There is no doubt that our enormous prison populations are driven in large measure by our sentencing policies, which favor incarceration over community-based alternatives or rehabilitation.  We spend enormous amounts of money keeping people in prison; money that in many cases would be better spent treating addiction or funding community-based programs to reduce recidivism. Moreover, our federal prison population is largely made up of non-violent and low-level offenders. 

            While incarceration at modest levels has some impact on crime, we are now long past the point of diminishing returns in the cost-effectiveness of our vastly expanded prison system.[iii]  The drafters of the Sentencing Transition Memorandum are concerned that too many people are locked up and many for far too long without evidence that the length or sometimes even the very fact of incarceration makes our communities safer or otherwise serve any legitimate purpose of punishment.    

            We oppose mandatory minimum sentences that transfer sentencing discretion from the courts to lawmakers and prosecutors. They tie the hands of judges so that they are unable to do what federal law commands: impose a sentence "sufficient but not greater than necessary" to achieve the purposes of sentencing.  See 18 U.S.C. § 3553(a).  We support the elimination of mandatory minimums and believe they should be excised from the criminal code.  As an intermediate step we would also recommend expansion of the "safety valve" to waive any mandatory minimum that would be excessive in an individual case.  In this memo, however, we recommend reforms that can realistically be accomplished in the early stage of a new administration.  One mandatory minimum in particular results in racially disparate incarceration trends.  The crack cocaine sentencing scheme is a "poster child" for the injustices of mandatory sentencing.  The federal Sentencing Commission has documented that it is the single greatest contributor to racial disparity in federal sentencing: fully 80 percent of all people sentenced for crack cocaine are black and they serve sentences significantly longer than their powder cocaine counterparts.  Congress seems ready to take up genuine crack cocaine reform and the drafters encourage the new administration to support the elimination of the crack cocaine sentencing disparity vigorously. 

            We are encouraged by the creativity, energy and new ideas generated by the alternatives to incarceration movement.   Many states have begun to experiment with different ways to divert or treat some low level offenders whose crimes are driven by, for example, addiction or mental health issues. A great body of evidence-based practices is emerging and in July 2008, the United States Sentencing Commission held a two day seminar to explore with practitioners, experts, academics, judges and others the various ways that states and some federal courts are using alternatives to avoid incarcerating offenders who are more amenable to diversion and treatment. We recommend several of these approaches to the new administration, including changes to the federal sentencing guidelines, which could be effected without legislation. 

            We also recommend various sentencing management and incentive-based programming changes, both to reward and encourage good conduct and to ensure that the courts or the executive are able to take a "second look" at deserving prisoners, whether to correct a mistake or an injustice, or give effect to compassion, when warranted. 

            Finally, in our recommendations, we address fundamental substantive and procedural fairness, including an examination of disparity in the criminal justice system. 

            For further information about our recommendations you may contact the authors: 

American Bar Association, Bruce Nicholson, This e-mail address is being protected from spambots. You need JavaScript enabled to view it

The Sentencing Project, Marc Mauer, This e-mail address is being protected from spambots. You need JavaScript enabled to view it and Kara Gotsch,  This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Open Society Policy Center,  Nkechi Taifa, This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Families Against Mandatory Minimums, Mary Price, This e-mail address is being protected from spambots. You need JavaScript enabled to view it and Jennifer Seltzer Stitt, This e-mail address is being protected from spambots. You need JavaScript enabled to view it . 

            Our specific recommendations include the following: 

Mandatory Minimum Reforms

Alternatives to Incarceration

• Expand alternatives to incarceration in federal sentencing guidelines*
• Enact a deferred adjudication statute
• Support alternatives to incarceration through expansion of federal drug and other problem solving courts. 

Incentives and Sentencing Management

• Expand the Residential Drug Abuse Program (RDAP)*
• Clarify good time credit
• Expand the amount of good time conduct credit prisoners may receive and ways they can receive it
• Enhance sentence reductions for extraordinary and compelling circumstances
• Expand elderly prisoners release program
• Revive executive clemency (see separate policy paper) 

Promoting Fairness and Addressing Disparity

• Support racial impact statements as a means of reducing unwarranted sentencing disparities
• Support analysis of racial and ethnic disparity in the federal justice system
• Add a federal public defender as an ex officio member of the United States Sentencing Commission 

*Recommendations in bold are priority recommendations 

[i]  http://www.ojp.usdoj.gov/bjs/prisons.htm

[ii]  Federal Bureau of Prisons, Weekly Population Report (October 9, 2008) , available at  http://www.bop.gov/locations/weekly_report.jsp

[iii] The Sentencing Project, Incarceration and Crime:  A Complex Relationship (2005), available at http://www.sentencingproject.org/pdfs/incarceration-crime.pdf.