How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration

Abstract

This article argues that each of the major decision-makers in the federal sentencing process, Congress, the United States Sentencing Commission and the federal judiciary contribute substantially to mass incarceration. The article first discusses how, beginning in the 1960s and continuing for the next three decades, Congress enacted a series of increasingly punitive anti-crime laws. Congress’s focus on crime was inextricably connected to the urban rebellion of the 1960s, and members of both political parties played important roles in passing the harsh legislation. Probably the worst of the laws that Congress enacted, and the one that contributed most to mass incarceration, was the mis-named Sentencing Reform Act of 1984 which abolished federal parole and established a commission to promulgate mandatory sentencing guidelines. The commission proceeded to enact extremely harsh guidelines and virtually preclude sentences of probation. The article laments how, even after the Supreme Court struck down the mandatory feature of the guidelines, federal judges continue to adhere closely to the guidelines when sentencing defendants. Finally, the article argues that one of the fundamental problems plaguing federal sentencing is the widespread misconception that the most important indicator of an effective and credible sentencing system is the absence of inter-judge disparity rather than the exercise of informed discretion.