This recent article discusses a push by conservatives to change criminal sentencing guidelines. The guidelines in question apply only to the state of Arizona, but this issue involves Texas and every other state in the union. Conservatives are realizing that mandatory sentences, modeled after those of the Federal Sentencing Guidelines, often lead to harsh, unfair, and absurd results.
For those unfamiliar with the Federal Sentencing Guidelines, here is a refresher. Up through the 1970s, criminal sentences were determined by judges and reviewed by parole boards, based on individual circumstances. But criticism of uneven sentencing and rising crime in the late 1970s paved the way for the United States Sentencing Commission and the Comprehensive Crime Control Act of 1984. The Commission created a Sentencing Guidelines that dictated the length of a sentence by the type of crime and the defendant’s criminal history. Suddenly judges had to put aside their wisdom and experience to issue a sentence already set in stone. Defendants without a strong federal criminal defense attorney had little hope of evading a harsh sentence. United States v. Booker (2005) changed the rules so that the Guidelines were advisory, not mandatory, but they still hold great influence even today.
While the federal guidelines were being developed, states such as Arizona and Texas rushed to create their own sentencing guidelines. Like the federal version, the state guidelines often looked at the type of offense and the defendant’s history. The state sentencing guidelines included offenses not listed in the Federal Sentencing Guidelines. And soon, like federal sentencing, state criminal sentences began to produce harsh, unfair, and absurd results.
Much has been made of the disparity in federal drug sentences. Until 2010, there was a 100:1 disparity in the sentences for possession of crack and powder cocaine. Crack cocaine was more “powerful,” it was reasoned, so its users deserved more jail time. Never mind that the difference in power was the source of continuous debate. While it’s fortunate that the 2010 Fair Sentencing Act reduced the disparity, other absurdities remain. Likewise, the article notes that an Arizona woman spent nearly two years in prison for her first DUI because she had previously been convicted of marijuana possession. Arizona imposes mandatory sentences for nonviolent crimes such as drug possession and DUIs. Its guidelines are especially harsh on repeat offenders can even if their past crimes were nonviolent.
To their credit, conservatives who support tough-on-crime measures think that the Arizona sentencing guidelines need to be reformed. Other states, such as Texas, have begun to reform their procedures as well. In 2007, Texas started a program that created an alternative to prison time by allowing offenders to substitute probation plus time in a substance abuse program. The Texas Public Policy Foundation has a Right on Crime project that is currently reviewing mandatory sentences.
The reformers realize that mandatory sentencing can ruin lives. Putting nonviolent offenders in prison takes them out of their communities and discourages them from developing skills. People who could have been reformed by a drug program end up becoming career criminals. Furthermore, the costs of keeping so many in prison are enormous, and likely not sustainable.
Thankfully, people are starting to address the problems with sentencing guidelines, at least at the state level. Maybe this will spread to the federal level, with judges increasingly choosing to ignore the Guidelines to focus on the circumstances right in front of them, creating a more just result for all.