Recommendations for Federal Sentencing


1 Pew Public Safety Performance Project, One in 100: Behind Bars in America 2008.(Pew Center on the States  February 2008), available at 8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.
2 Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations’, N.Y. Times, Apr. 23, 2008, available at:
3 National Association of State Budget Officers, Expenditure Reports 2005 – 2009, available at : 107/Default.aspx (last visted Jan. 24, 2011).
4 See, e.g., Joan Persilia, A Crime Control Rationale for Community Corrections 74 Prison J. 479 – 496, available at:
5 Press release, Families Against Mandatory Minimums, Historic Agreement to Reform Rockefeller Drug Laws (Mar. 27. 2009), available at: HistoricAgreementtoReformRockefellerDrugLaws.aspx; Prisons Full, Coffers Empty, Economist (July 22, 2010), available at: (last visited Jan. 24, 2011).
6 Molly M. Gill, Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, 21 Fed. Sent’g Rep. 55 - 2008) available at:
7 Pub. L. No. 98-473, 98 Stat. 2017 (codified as amended at 28 U.S.C. § 991 (2007)).
8 See 28 U.S.C. § 991(b)(1)(B) (2007); See also Pub. L. No. 98-473, 98 Stat. 2019 (codified as amended at 28 U.S.C. § 994 (2007)) (describing the Commission’s duties and powers).
9 See, e.g., U.S.S.G. § 5K2.0 (2008) (describing when a sentence may be increased or decreased based on factors “not adequately taken into consideration by the Sentencing Commission in formulating the guidelines”).
10 Gill, supra note 6, at 59.
11 Id.
12 Id.
13 For example, the policy body of the federal judiciary expressed its view in testimony by Judge Vincent Broderick on mandatory minimums in 1993 before the Crime subcommittee of the House Judiciary Committee “I warrant that there is no single issue affecting the work of the federal courts with respect to which there is such unanimity:  most federal judges . . . whatever their background, believe – and this is predicated on their experience – that mandatory minimums are the major obstacle to the development of a fair, rational, honest and proportional federal criminal justice sentencing system.” Federal Mandatory Minimum Sentencing: Hearing Before the Subcomm. on Crime and Criminal Justice of the H. Comm. of the Judiciary, 103rd Cong. 104 (1993) (statement of the Honorable Vincent L. Broderick, Chair of the Conference Committee on Criminal Law of the Judicial Conference of the United States), available at
16 U.S. Bureau of Prisons, A Brief History of the Bureau of Prisons,
19 FIFTEEN YEAR REVIEW, supra note 19, at 54
20 All sides in the debate agree that proving causality between longer mandatory sentences and crime rates is difficult.  Yet the burden falls on the proponents of mandatory minimums to provide evidence that they are working.  The proponents have shown none.
21 The Pew Center on the States, One in 100: Behind Bars in America 2008 (2008), available at
22 William Sarbol, et al., Prisoners in 2008, NCJ 228417 (Dec. 2009), available at .
23 Roy Walmsley, World Prison Population List. (Eighth Edition), Int’l Centre for Prison Stud., Sch. of L., King's College London.
24 Pub. L. No. 111-220, 124 Stat. 2372..
25 Congressional Budget Office, Cost Estimate: Fair Sentencing Act of 2010 (2010), available at:
26 Id.§ 8.
27 Letter from Richard Durbin and Patrick Leahy, United States Senators, to Eric Holder, Attorney General of the United States (November 17, 2010).
28 Id. at 1.
29 United States v. Douglas, 2010 WL 4260221 (D. Me. 2010).
30 See, e.g., United States v. Johnson, No. 6:08-cr-270 (M.D. Fla. 2011); United States v. Cox, No. 3:10-cr-85 (W.D. Wis. 2011);United States v. Jones, No. 4:10 CR 233 (N.D. Ohio 2011); United States v. English, No. 3:10-cr-53 (S.D. Iowa 2010).  For full list of district court cases applying the ameliorative changes to the Fair Sentencing Act of 2010 to defendants whose conduct occurred before its passage but who had not yet been sentenced, see also
3118 U.S.C. § 3553(f).
32 Id.
33 U.S. Sent’g Commission, Overview of Statutory Mandatory Minimum Sentencing  8, tbl. 4 (July 10, 2009), available at
34 18 U.S.C. § 924(c). 
35 Recidivists in criminal law are generally only considered such after they have had an opportunity to reflect on their conduct following apprehension, prosecution and punishment.  For example, the recidivist provisions in 18 U.S.C. § 841 only kick in after a conviction has been finalized, as do most other recidivist and two and three strike provisions in state and federal law.
36 See Bureau of Just. Stat, , Special Report: Time Served in Prison by Offenders, 1986-97; Bureau of Just. Stat., Federal Criminal Justice Trends (2003), available at; U.S. Sent’g Commission, Sourcebooks, available at
37 Fifteen Year Review, supra note 19, Fig. 2.2 at 43.
38 Sourcebook of Federal Sentencing Statistics, supra note 20, Fig. D, at 27.
39 Proposed Amendments to the Federal Sentencing Guidelines Regarding Alternatives to Incarceration: Hearing Before the U.S. Sentencing Comm., Mar. 17, 2010 (statement of James E. Felman, Co-Chair, American Bar Assoc. Criminal Justice Section Committee on Sentencing), available at:
40 18 U.S.C. § 3621(e)(2).
41 Id.
42 U.S. Bureau of Prisons, Annual Report on Substance Abuse Treatment Programs, Fiscal Year 2008, Report to Congress (2009). 
43 U.S. Dept. of Justice, Federal Bureau of Prisons, State of the Bureau 2009 (2009), available at:
44 Id.
45 18 U.S.C. § 3624(b).
46 Id.
47 Barber v. Thomas, 560 U.S. ____ (2010)
48 18 U.S.C. § 3582(c)(1)(A).
49 See USSG 1B1.13.
50 Margaret Colgate Love, Sentence Reduction Mechanisms in a Determinate Sentencing System: Report of the Second Look Roundtable 216, 21 Fed. Sent’g Rep. 211 – 225 (February 2009), available at:
51 Id. at 224.
52 Tina Chiu, It’s About Time: Aging Prisoners, Increasing Costs, and Geriatric Release (Vera Institute of Justice, April 2010), available at:
53 Molly Fairchild James, The Sentencing of Elderly Criminals, 29 AM. CRIM. L. REV. 1025, 1026 (1992).
54 Chiu, supra note 52.
55 Id.
56 Id.
57 18 U.S.C. 5041 (1984) (repealed).
58 See 28 U.S.C. § 991(a); Public Law No. 98-473 § 235.
59 H.R. 5484, 99th Cong. (1986).
60 In its 1991 report on mandatory minimum sentencing, USSC wrote:  “[F]rom a structural standpoint, the Sentencing Commission found that , while it theoretically could design a structure that would equate the lowest guideline sentence with the mandatory minimum, adherence to that approach would produce in typical cases sentences that would reach or exceed the statutory maximum and thus, there would be little if any opportunity for consideration of aggravating factors.  The Sentencing Commission therefore concluded that a more reasonable, rational, and proportional approach to the sentencing of drug trafficking offenders would use the mandatory minimum penalties as starting points to determine the base offense levels.” U. S. Sent’g Commission, Special Report to the Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System (Aug. 1991) at 29, available at
61 Following passage of the Fair Sentencing Act of 2009, the Commission raised the crack cocaine guidelines to their pre-November 1, 2007 levels.  See S. 1789, 111th Cong. (2010) (enacted).
62 Paul J. Hofer et al., Fifteen Years of Guidelines Sentencing (U.S. Sentencing Commission, Nov. 2004), available at:
63 Id.. at 49.
64 H.R. 6548, 111th Cong. (2010).
65 U.S. Sentencing Guidelines Manual §§ 2D1.1, 2D1.14, 2D2.1, 2K2.4, 3B1.4, 3C1.1 (2010).
66 Fairness in Cocaine Sentencing Act, H.R. Rep. No. 111 – 670 (2010).
67 Letter from Richard Durbin and Patrick Leahy, United States Senators, to William K. Sessions, Chairman, United States Sentencing Commission (October 8, 2010), available at 20101013/SenDurbin_comment_100810.pdf ; Letter from John Conyers and Robert Scott, United States Representatives to William K. Sessions, Chairman, United States Sentencing Commission (October 8, 2010), available at 20101013/House_CrimeSubcomte_100810.pdf
68 U.S. Sent’g Comm., Report to Congress: Federal Cocaine Sentencing Policy (May 2007); U.S. Sent’g Comm., Report to Congress: Cocaine and Federal Sentencing Policy (May 2002); U.S. Sent’g Comm., Special Report to Congress: Cocaine and Federal Sentencing Policy (Apr. 1997); U.S. Sent’g Comm., Special Report to Congress: Cocaine and Federal Sentencing Policy (Feb. 1995).
69 U.S. Sentencing Guidelines Manual § 4A1.2.
70 Molly N. Van Etten, The Difference Between Truth and Truthfulness: Objective Versus Subjective Standards in Applying Rule 5C1.2 56 Vand. L. Rev. 1265 (2003).
71 H.R. 834, 111th Cong. (2009).
72 18 U.S.C. § 3553(f)(5)
73 U.S. v. Johnson, 375 F.3d 1300
74 U.S. Sent’g Commission, Fifteen Years, supra note 17, at 50.
75 H.R. 2933, 110th Cong. (2009)
76 H.R. 6059, 111th Cong. (2010).
77 18 U.S.C. § 3607.
78 18 U.S.C. § 5005 et seq. (repealed in 1984).
79 See Special Report: Time Served in Prison by Offenders, supra note 39; Federal Criminal Justice Trends, supra note 39; U.S. Sent’g Commission Sourcebooks, supra note 39.
80 Commission Promulgates Amendments; Sends Package to Congress, Guidelines (United States Sent’g Comm’n, Washington, DC), Spring 2010, at 1, available at  
81 United States Sentencing Commission, Recidivism and the “First Offender” 13-14 (May 2004), available at
82 See, e.g., Pew Center on the States, What Works in Community Corrections: An Interview with Dr. Joan Petersilia (Nov. 2007), available at (“[W]e know that intensive community supervision combined with rehabilitation services can reduce recidivism between 10 and 20 percent.”)
83 David Leonhardt, Immigrants and Prison, N.Y. Times (May 30, 2007) (“According to the Department of Justice[,] [i]n 2000, 27 percent of the inmates in federal prisons were noncitizens.”), available at
84 28 C.F.R. § 550.58; see also Families Against Mandatory Minimums, Frequently Asked Questions about the Residential Drug Abuse Program (RDAP), available at
85 Office of National Drug Control Policy, Drug Policy Information Clearinghouse Fact Sheet, Drug Treatment in the Criminal Justice System (Mar. 2001), (last visited Jan. 24, 2011).
86 28 C.F.R. § 550.58.
87 18 U.S.C. § 924(c)(3).
88 18 U.S.C. § 3624(b).
89 Barber v. Thomas, 130 S. Ct. 2499 (Jun. 7, 2010).
90 H.R. 4327, 111th Cong. (2009).
91 H.R. 4328, 111th Cong. (2009).
92 See William W. Berry III, Extraordinary and Compelling: A Re-examination of the Justifications for Compassionate Release, 68 Maryland L. Rev. 850, 852-53 (2009). 
93 See National Institute of Corrections, United States Department of Justice, Correctional Healthcare: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates 11 (2004), available at  (“The annual cost of incarcerating this population has risen dramatically to an average of $60,000 to $70,000 for each elderly inmate compared with about $27,000 for others in the general population.”)
94 Timothy A. Hughes et al., Trends in State Parole, 1990-2000 (Bureau of Justice Statistics 2001).
95 42 U.S.C. § 17541.
96 Id.; see also Families Against Mandatory Minimums, Frequently Asked Questions about the BOP’s Elderly Offender Home Detention Pilot Program, available at