JURIST Guest Columnist Nicholas M. Wooldridge of LV Criminal Defense discusses the Sentencing Reform and Corrections Act of 2015 and its problematic aftereffects on offenders, society and the criminal justice system…

The Sentencing Reform and Corrections Act of 2015 has not yet even been scheduled for a vote in the full Senate, but it is already dead. Yes, you read it here first. It is dead. You’ve heard the expression: if you like sausage, you shouldn’t watch it being made. The same is true with legislation. The past two years have seen a lot of enthusiasm and optimism for criminal justice with former federal prosecutors, federal judges, defense attorneys, and even Congress weighing in on the issue. Yet the proposed legislation, the Sentencing Reform and Corrections Act of 2015, does nothing to fix the root causes of America’s failed approach to crime and criminal justice. Instead, the proposed legislation, as recently revised by the Senate Judiciary Committee, creates the appearance of reform without doing much of anything to effect actual reform. Let’s recap a little.

We call ourselves the land of the free, but we have the highest incarceration rate of any nation in the world. We have five percent of the world’s population, but more than twenty-percent of the world’s prisoners. We imprison folks in the US longer than anywhere else for their crimes, we permanently shame and disintegrate ex-offenders from society upon their release and then act surprised when they re-offend. Let’s acknowledge the irony in this the land of the free.

American criminal justice over the past four decades has been characterized by three events: over-criminalization, the rise of mass incarceration, and an increasing tilt towards the prosecution in the adversarial process leading to a significant rise in the conviction rate to nearly 93.3 percent.

Proliferation in Federal Criminal Laws

Prior to the 20th century, criminal law concerned itself mostly with acts that everyone knew and understood were morally wrong. Thus, the old saying ignorantia juris non excusat (ignorance of the law is no excuse) could be taken seriously. This is no longer the case today. When the Government exercises its power to prosecute and imprison, it is exercising its most awesome power, short of warfare. It is a power that must be exercised with precision and clarity. Yet, recent decades have seen a proliferation in federal criminal laws, a dramatic expansion in their application to various contexts and factual scenarios, and even their extraterritorial application even beyond our borders. The sheer number of federal laws that impose criminal penalties has grown to an unmanageable point. In point of fact, the Congressional Research Service has been unable to come up with a definitive total of federal criminal laws; the best they have been able to do is to come up with an estimate that the number is in the thousands.

The Rise of Mass Incarceration

Prior to the sentencing reform movement across the US of the late 1970s and 1980s, probation was the starting point for most non-violent first-time offenders. In the 1980s, a little less than half of offenders in the federal system received probation. Fast forward to 2014—nine in ten federal offenders received prison sentences.

Until the Supreme Court’s decision in US v. Booker, judges had limited sentencing discretion, and calculating the appropriate sentence simply required adding up points to determine where a defendant fell in the Sentencing Guidelines’ grid. Yet, even after Booker, which rendered the Sentencing Guidelines advisory, the Pew Charitable Trusts research report demonstrates that a period of imprisonment is still the norm. After decades of sentencing, Judges have become accustomed to seeing imprisonment as the most viable criminal sanction to meet the goals and purposes of sentencing set forth in 18 U.S.C. § 3553(a). While judges may decry any responsibility for the rise of mass incarceration, they can no longer skirt responsibility by simply blaming the Sentencing Guidelines. Of course, federal judges can still blame mandatory minimum, but fixing or reducing the application or eliminating statutory mandatory minimums, is not enough. On this point, while the Sentencing Reform and Corrections Act of 2015 reduces some statutory mandatory minimums, it introduces a myriad of new offenses, which trigger mandatory minimums. Federal judges who have the weighty task of sentencing need to understand that criminal sanctions short of lengthy imprisonment often suffice to fulfill all the goals of sentencing, namely, just punishment and deterrence. Moreover, criminal justice reform opponents universally recount, often in graphic detail, the details of offenders’ criminal conviction and appeal to morals and mass hysteria. Yet, two wrongs don’t make a right. Years of empirical and academic research by criminologists have put numbers to the lie that has permeated the nation’s collective psyche that more and longer incarceration is the solution.

Are Defendants Still Innocent Until Proven Guilty?

The US likes to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. As noted in a recent law review article by US Court of Appeals for the Ninth Circuit Judge Alex Kozinski, there is reason to doubt the continued applicability of this principle first expressed by English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s. For fiscal year 2013, the US Department of Justice achieved a 93.3 percent conviction rate [PDF, charts]. This ever-increasing conviction rate calls into question whether prosecutors have too much leverage and whether the Constitutionally-protected and prized adversarial system remains just and fair. Worse, a defendant who exercises his Constitutionally-protected right to put the Government to its proof at trial may receive a trial penalty: a punishment that is far in excess of the sentence that could have been imposed had the defendant pled guilty. This is because prosecutors have exclusive discretion over when to charge, which charges to bring against the defendant and control the facts, including the set of facts known as “acquitted conduct” and “relevant conduct” that are shared with the Probation Office. These facts determine how many or which of the many enhancements available under the U.S. Sentencing Guidelines apply. Worst still, these facts can lead to what numerous judges and academics have described as a case of the “tail wagging the dog” where the acquitted conduct or relevant conduct and not the offense of conviction determines the sentence, subject only to the statutory maximum of the offense of conviction. On this point, the Sentencing Reform and Corrections Act 2015 is completely silent.

We Are Not a Nation of Second Chances

Most politicians and most Americans proudly state “we are a nation of second chances.” This statement is utter rubbish—it is misleading, and is nothing more than a soundbite for the media. An offender convicted of a felony offense becomes an instant pariah and his debt-to-society will technically never be paid; his conviction will often be used to insure he is denied access to housing, jobs, and even education. A person convicted of a felony in the federal system who serves his sentence without incident, will not magically turn his life around and become a doctor, a lawyer, a judge, or licensed professional. Instead, he will be disenfranchised at almost every turn. In most cases, a felony conviction will result in the loss of the right to vote; preclude future employment in many licensed professions; and even the run-of-the-mill jobs that require a background check. A felony conviction will also exclude many offenders from accessing education, federal and state benefits and even housing.

Not surprisingly, criminal punishments and a permanent criminal record can actually increase future offending among the punished. According to labeling theorists, criminal behavior often shows an increase after sanctioning because formal sanctions significantly reduce legitimate life pathways. Moreover, especially in the case of young adults, sanctioned criminals may engage in a process of value identification with their label, and thus adopt norms and behavior patterns typical to that label, i.e. “once a criminal always a criminal.” Imprisonment may serve as a powerful conduit to the adoption of criminal identity, as it is the most severe sanction that one can receive from the state (except for death) and in fact, bestows a more stigmatized label than lesser sanctions (e.g. probation). In short, being imprisoned and labeled a convicted felon for prolonged periods of time, may serve to increase future offending, not reduce offending. Thus, the American criminal justice system does not provide or foresee second chances.

On this point, § 211 of the original version of the Sentencing Reform and Corrections Act 2015 borrowed from Senators Cory Booker (D-NJ) and Rand Paul’s (R-KY) legislation, REDEEM Act, and contained an expungement and sealing provision to help young adults petition the sentencing judge to expunge their non-violent juvenile delinquencies, and seal their felony convictions. The original provision covered both juvenile delinquencies and felony convictions, provided the conduct leading to the juvenile delinquency or felony conviction (not the date of conviction) occurred before the offender turned twenty-one years old. Currently, the broad availability of criminal record information, which can often be accessed through a simple Google search, disables adults who have turned their lives around from finding employment and becoming productive members of our communities years – sometimes, decades – after their criminal conviction.

Yet, even here, the Sentencing Reform and Corrections Act of 2015, falls short: after the Senate Judiciary Committee‘s markup, the expungement and sealing provisions in § 211 were limited to only those with juvenile delinquencies. And Senators Booker and Paul’s REDEEM Act, which provided broad access to expungement and sealing procedures, appears to be dead in the Judiciary Committee.

Conclusion

While the few reforms in the Sentencing Reform and Corrections Act of 2015 are not inconsequential, they do not go far enough and place too much of an emphasis on drug crimes. This is because federal drug offenses only represent 46.5 percent of the federal prison population.

In the end, this draft legislation betrays a more fundamental problem in America: a failure to appreciate or even acknowledge the need to fundamentally alter our response to crime and criminal justice. Reducing a few mandatory minimums and adding a few new ones, with a few superficial changes to prohibit prolonged periods of solitary confinement, will hardly reverse the carnage that decades of over criminalization and mass incarceration have brought on America and the fundamental rights of the accused. Finally, back to the sausage: even this modest reform has run into stiff opposition from Senator Tom Cotton (R-AK), who has warned that it would make American communities unsafe and may fail before the election season swings into full gear.

Nicholas Wooldridge is a prominent criminal defense attorney in Las Vegas, NV, as well as the founder of LV Criminal Defense. An expert in federal crimes defense and white collar crime, Nicholas is also a published author and frequent media contributor.

Suggested citation: Nicholas M. Wooldridge, The Failure of the Sentencing Reform and Corrections Act 2015, JURIST – Professional Commentary, Feb. 13, 2016, http://jurist.org/hotline/2016/2/nicholas-wooldridge-sentencing-reformphp