How Federal Judges Contribute to Mass Incarceration and What They Can Do About It

Abstract

Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum. This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.