Incarceration agitation: We must work on sentencing guidelines

No country incarcerates a higher percentage of its population than the United States. How does that grab you?

At 716 per 100,000 people, according to the International Centre for Prison Studies, the U.S. tops every other nation in the world – yup, even Cuba, Russia and a host of other countries that might surprise you.

Among the Organization for Economic Co-operation and Development countries, the competition isn’t even close – Israel comes in second, at 223 per 100,000. We’re No. 1, and that’s not a good thing.

A lot has been reported about our nation’s prison system and its bloated population. Why is this?

A big reason is federal mandatory minimum sentencing for nonviolent crimes. After several decades of this – a process by which Congress and state legislatures shifted decision-making powers away from judges and handed it to prosecutors – it’s time to admit failure. And do something about it.

In order to become elected, candidates had to – and in many cases still have to – take a real tough stand on crime. On the surface, this may look good, but the resulting sentencing mandates have helped to bloat the population of our nation’s prisons.

A U.S. Senate bill, the Justice Safety Valve Act of 2013, is catching the attention of conservatives and liberals in Washington. It addresses the injustice and deficit-busting costs of incarcerating low-level offenders for long stretches. The federal prison population is now 219,000 (up from 25,000 in 1980), about half of whom are doing time for nonviolent drug-related offenses.

And that’s just the federal side of things. State prisons hold many more people on similar mandatory-minimum laws that are testing the humane limits of state facilities, putting pressure on state taxes, and handcuffing state and county judges in sentencing evaluations.

The bill – sponsored by Sens. Patrick Leahy, D-Vt., and Rand Paul, R-Ky. – would give federal judges more latitude in mandatory-minimum cases, allowing for lighter sentences if a first-time, nonviolent crime isn’t considered egregious and a shorter term would pose no safety threat to the public.

“Our country’s mandatory-minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the constitutional separation of powers, violates our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer,” Paul said as he and Leahy introduced the measure. “This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory-minimum penalties.”

Federal sentencing guidelines would still speak loudly, notably in cases in which the offender has a previous record, is prone to violence or is deemed a threat to re-offend. A judge levying a sentence below the mandatory minimum would have to issue a detailed, reviewable opinion to justify the decision.

We believe this bill deserves a good look, and not just to keep down costs of our prisons and jails.

Too often judges have to go against their own wisdom and experience in sentencing; they are effectively removed from the process. The stacking of charges carrying mandatory minimums by prosecutors is an efficient way to keep cases from going to trial, but it saps a defendant’s ability to contest the charges.

Plea-bargaining in such cases isn’t much of a negotiation; it’s a take-it-or-leave-it erosion of one’s constitutional right to be heard in court. Taxpayers get socked on the other end, too, after a first-time offender spends a decade or more in jail.

Proponents have said we need to ensure that incarceration is used to punish, deter and rehabilitate – not merely to convict, warehouse and forget.

We strongly agree.