Prison-By-Default: Challenging the Federal Sentencing Policy's Presumption of Incarceration

61 Pages Posted: 21 Jan 2014 Last revised: 31 Mar 2014

See all articles by Melissa Hamilton

Melissa Hamilton

University of Surrey School of Law

Date Written: January 20, 2014


The United States has earned its nickname as a mass incarceration nation. The federal criminal justice system has contributed to this status with its own increasing rate of incarceration. The federal system now ranks as the largest population of sentenced prisoners in the country; it is even larger than the national prisoner populations among all European countries, save one. This is a recent phenomenon. This Article ties the increase in the federal incarceration rate to policies adopted by the United States Sentencing Commission since its inception that presume imprisonment as the default sentence. Since the Sentencing Commission’s creation in 1984, the proportion of federal sentences requiring incarceration increased from under fifty percent to over ninety percent. This Article provides evidence that the prison-by-default position by the Sentencing Commission is contrary to Congressional intent when the legislature passed sentencing reform laws in the 1980s, has contributed to a federal prison system that is operating over capacity, and wastes resources. The increasing rate of imprisonment at the federal level conflicts with the downward trend in national crime rates and with the states’ sentencing experiences in which probation sentences continue to be preferred. Potential alternative explanations for the significant trend toward the affirmative use of imprisonment in federal sentences are outlined, yet the available statistical evidence generally rules them out. Finally, suggestions on changes to the sentencing guidelines and to judicial sentencing practices are offered.

Keywords: sentencing, prison, United States Sentencing Commission, incarceration rate, crime, punishment, federal criminal justice

JEL Classification: K4, K14

Suggested Citation

Hamilton, Melissa, Prison-By-Default: Challenging the Federal Sentencing Policy's Presumption of Incarceration (January 20, 2014). Houston Law Review, Forthcoming; U of Houston Law Center No. 2014-A-8. Available at SSRN:

Melissa Hamilton (Contact Author)

University of Surrey School of Law ( email )

United Kingdom

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