It’s been more than a quarter-century since Congress rewrote the federal criminal code to toughen criminal sentences, abolish parole, and add drug and other crimes. Since then, federal crimes have mushroomed, and the numbers of people in federal prison has increased exponentially. Is this system the best we can do? BY JOHANNA E. MARKIND 64 • THE FEDERAL LAWYER • AUGUST 2014 Federal Crime and Punishment Meet the New System, Same as the Old System? n 1987, the Sentencing Reform Act transferred to the United States under treaty. But the Parole Commission’s principal focus is now administering parole and (SRA) eliminated parole for federal supervised release for the local District of Columbia criminal Icrimes. The U.S. Parole Commission population. had five years to phase out parole and shut The decline in federal parole has led to an explosion of federal inmates. As of March 21, 2013, the Bureau of Prisons down. Since then the commission has been (BOP) reported 217,929 prisoners in custody, around 210,000 extended several times. Most recently, Con- of whom are not eligible for parole, resulting in substantial overcrowding.3 In short, today’s federal prisons have about gress approved a five-year reauthorization 495 percent more prisoners than they did back in 1987 when bill, which the President signed into law on parole was abolished. To handle the increased volume, BOP’s Oct. 31, 2013. budget has increased exponentially, from $220 million in 1986 to $6.859 billion for fiscal year 2014, a 3,153 percent increase From a high of about 44,000 prisoners in 1987,1 the com- since the abolishing of parole. As Sen. Everett Dirksen (R-Ill.) mission now has jurisdiction over fewer than 1,200 federal is reputed to have said, “A billion here, a billion there, and prisoners and 2,500 federal parolees.2 The bulk of its respon- pretty soon you’re talking real money.”4 sibilities now lies elsewhere— deciding whether to release on The increase in incarcerated prisoners and costs is partly parole, and whether to revoke parole or supervised release attributable to a vast growth of federal crimes. In particular, of District of Columbia Code offenders. (For the uniniti- Congress federalized a lot of drug crimes about a year before ated, supervised release is a period of post-incarceration abolishing parole. The Anti-Drug Abuse Act of 1986 greatly re-entry to society overseen by the authorities, in many ways expanded the number and scope of federal drug crimes and analogous to parole.) D.C. offenders under supervision of penalties for their violation. About 48 percent of people now the Parole Commission now number about 17,200 people, or serving time in federal prison are there for drug offenses, about 83 percent of its workload. The commission also makes according to a Government Accountability Office (GAO) parole decisions for military prisoners in the custody of the study. Bureau of Prisons and determines release dates for Americans But these mushrooming numbers also result from the convicted of crimes in foreign countries who have been abolition of parole, which had previously functioned as a AUGUST 2014 • THE FEDERAL LAWYER • 65 safety valve for the system. In an August 2013 address to the ago piecemeal, it may be time for Congress to undertake a sys- American Bar Association (ABA) House of Delegates, Attorney tematic review of its criminal justice system: what works, what General Eric Holder said that, under the current system, “too doesn’t, and what could stand improvement? many Americans go to too many prisons for far too long and for Following is my proposed agenda for such a review. no truly good law enforcement reason.”5 In a November 2013 interview with USA TODAY, Holder suggested that “new consid- Revamping the Federal Criminal Code eration should be given to the reinstatement of parole for federal The vast expansion of federal drug crimes accounts for almost offenders to help restore fairness in the criminal justice system half of federal prisoners. The cost of prosecution and punishment and relieve overcrowding in the swelling federal prison system.”6 is enormous, especially in light of stiff mandatory sentencing In the August ABA speech, Holder presented a package of minimums, which is why two of the changes respectively adopted revised Department of Justice policies to ease overcrowding and and advocated by the attorney general concern narrowing the improve sentencing fairness. These include increasing compas- impact of these mandatory minimums. sionate releases of nonviolent elderly inmates to be administered Historically, drug crimes were generally considered a state by the BOP (the Parole Commission already had authority to problem. During his Oct. 5, 2011, testimony before the Senate order compassionate release of inmates sentenced pre-SRA), Judiciary Committee, Justice Antonin Scalia remarked, “I think it avoiding charges for low-level and nonviolent drug offenders was a great mistake to put routine drug offenses into the federal that would carry mandatory minimum sentences, and endorsing courts. That’s just routine stuff that used to be handled by state proposed legislation to permit federal judges to vary from “man- courts.”8 Last December, Washington and Colorado legalized the datory” minimums for certain drug offenses. use of marijuana. Several other states have legalized its use for One of the goals of the Sentencing Reform Act was to pro- medical purposes. mote fairness by prescribing more or less the same time for the Congress should revisit whether drug crimes should be crimes same crime, thus avoiding unwarranted sentencing disparities. at all, whether they should be federal crimes, and what sanctions Although the sentencing guidelines tried to account for dis- would be appropriate if they remain on the books. Fortunately, tinctions between offenders as well as crimes, the prescriptive we have a partial model for this study, in the form of alcohol. approach could not help but overlook many differences. Many Prohibition certainly was effective in reducing alcoholism and judges felt the SRA straightjacketed them into imposing sen- related health problems. It ended during the straitened financial Drug crimes are not the only problematic federal crimes. In a joint study published in 2010, “Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law,” the National Association of Criminal Defense Lawyers and the Heritage Foundation decried the “reckless pace of criminalization” and poor draftsmanship that have created federal crimes with murky mens rea requirements, sowing confusion, additional administrative costs, and potential wrongful conviction. tences they did not believe to be fair or appropriate. Judges and circumstances of the Great Depression, arguably to enable states criminal defense lawyers complained that the SRA unconsti- to benefit from alcohol tax revenue. By reviewing the impact of tutionally shifted power from judges and juries to prosecutors Prohibition’s repeal, we may gain useful insight into the prob- because the prosecutor’s charging decisions largely dictated the able impact of drug legalization, insofar as whether it is likely ultimate sentence. The judge had little power to deviate from the to increase or decrease crime, whether it is likely to increase guidelines, and juries not only didn’t determine sentences, they or decrease health problems related to drug use and abuse, and were shielded from any knowledge of sentencing consequences. how much it is likely to increase revenue if drugs are legalized The Supreme Court’s 2005 decision in United States v. and taxed. Booker reinstated some judicial discretion by making the sen- Drug crimes are not the only problematic federal crimes. In tencing guidelines advisory instead of mandatory. But, even a joint study published in 2010, “Without Intent: How Congress still, judges are not permitted to sentence below the mandatory Is Eroding the Criminal Intent Requirement in Federal Law,”9 minimums established by Congress for a given crime. Holder the National Association of Criminal Defense Lawyers and the urged Congress to remove unnecessary mandatory minimums,7 Heritage Foundation decried the “reckless pace of criminaliza- and in the interim proposed that prosecutors avoid, in some tion” and poor draftsmanship that have created federal crimes instances, charging crimes carrying a mandatory minimum. (This with murky mens rea requirements, sowing confusion, addi- interim proposal tends to increase prosecutorial plea-leverage). tional administrative costs, and potential wrongful conviction. As With such changes, the new sentencing system is looking more Justice Scalia noted in his dissent in Sykes v. United States,10 and more like the old system, in which judges had unfettered discretion in imposing sentences and prisoners could be released We face a Congress that puts forth an ever-increasing vol- before their terms expired if they were deemed not to pose a ume of laws in general, and of criminal laws in particular. threat to society. It should be no surprise that as the volume increases, so Rather than reworking or reversing changes imposed 26 years do the number of imprecise laws. And no surprise that our 66 • THE FEDERAL LAWYER • AUGUST 2014 indulgence of imprecisions that violate the Constitution As Tierney notes, increased prison time for nonviolent offenders encourages imprecisions that violate the Constitution. may actually increase recidivism, “creating more crime over the Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts long term by harming the social fabric in communities and per- legislation is attractive to the Congressman who wants manently damaging the economic prospects of prisoners as well credit for addressing a national problem but does not have as their families.” the time (or perhaps the votes) to grapple with the nitty- People from both sides of the political spectrum have begun gritty. In the field of criminal law, at least, it is time to call to question the need for and utility of more and longer sentences.