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Mandatory Sentencing Is Not the Answer

Jesselyn McCurdy,
Director, Equality Division,
National Political and Advocacy Department
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October 13, 2011

Hamedah Hasan, a 43-year-old mother and grandmother, continues to languish in prison. She is 18 years into a 27-year prison sentence for a first-time nonviolent crack offense. Though the Nebraska judge who heard her case didn’t want to give such a harsh sentence, he said he saw no way to sentence her to a shorter term under the mandatory federal sentencing guidelines at the time.

Hamedah is one of many in our prison system who are serving sentences that they did not deserve because of mandatory sentencing in the federal system. We know from years of federal sentencing policy that mandatory sentencing results in unnecessarily harsh sentences.

And yet, yesterday, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security held a hearing on the current federal sentencing guidelines that could once again lead to mandatory sentencing at the federal level.

In a 2005 decision, United States v. Booker, the U.S. Supreme Court held that mandatory federal sentencing guidelines in effect at the time violated the Constitution’s promise of a trial by jury. After the Booker decision, the sentencing guidelines became advisory and it was no longer mandatory for judges to follow them.

The hearing explored whether this current system is fair and whether the U.S. Sentencing Commission should continue to exist. As the ACLU said in a statement to the subcommittee today, the answer to both these questions is YES.

The current system allows judges to consider sentences that are appropriate on a case-by-case basis. If judges have to follow mandatory sentencing guidelines, it will add to the mass incarceration in our nation’s prisons, filled with people like Hamedah, who are serving long sentences they did not deserve.

Additionally, the Commission has encouraged more fairness in sentencing, despite claims that it overstepped its authority by proposing that judges, in making their sentencing determinations, should consider factors such as whether a person has a drug problem or mental illness. The Commission also came under scrutiny in June for making the provisions of the Fair Sentencing Act of 2010 retroactive — a decision that could provide relief for Hamedah and others in her situation. That’s certainly no reason to abolish it.

In recent years, we have finally gotten closer to finding the right balance between the concepts of consistency and fairness in sentencing by taking some of the power out of the hands of prosecutors and allowing judges some discretion to determine sentences. We should not go back to the old mandatory sentencing system that resulted in many people wasting their lives in prison.

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